1 Fair Work Act 2009 s.306E - Application for a regulated labour hire arrangement order Applications by the Mining and Energy Union re: Goonyella Riverside Mine, Peak Downs Mine and Saraji Mine (C2024/3846, C2024/3847, C2024/3848, C2024/3849, C2024/3850, C2024/3851, C2024/3853, C2024/3856, C2024/3857, C2024/3858) and Applications by “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) re: Peak Downs Mine, Saraji Mine and Goonyella Riverside Mine (C2024/3859, C2024/3860, C2024/3861) VICE PRESIDENT ASBURY VICE PRESIDENT GIBIAN COMMISSIONER DURHAM BRISBANE, 26 AUGUST 2025 Application for a regulated labour hire arrangement orders in respect of the Goonyella Riverside Mine, Peak Downs Mine and Saraji Mine – Form and timing of orders – What is necessary to be done to specify the regulated employees covered by the order for the purposes of s 306E(9)(c) of the Fair Work Act 2009 (Cth) – Timing of operation of orders. Introduction [1] On 7 July 2025, the Full Bench handed down its decision in Applications by the Mining and Energy Union re: Goonyella Riverside Mine [2025] FWCFB 134. The Full Bench determined that regulated labour hire orders were required to be made under s 306E(1) of the Fair Work Act 2009 (Cth) (the Act) with respect to each of the applications made by the Mining and Energy Union (the MEU) and the Australian Manufacturing Workers’ Union (the AMWU). The orders will relate to employees supplied to work at the Goonyella Riverside mine, the Peak Downs mine and the Saraji mine by OS ACPM Pty Ltd and OS MCAP Pty Ltd, WorkPac Pty Ltd and WorkPac Mining Pty Ltd and Ready Workforce Pty Ltd (a Division of Chandler Macleod Pty Ltd) and Chandler Macleod Group Limited. [2] In the event that the Full Bench determined to make regulated labour hire arrangement orders, BHP and the OS Parties (as well as WorkPac and Chandler Macleod) asked the Commission to defer making orders to afford an opportunity for those parties to be heard on the question of timing of the orders. The parties were unable to resolve, as between themselves, the terms of the orders that should be made or when the orders should commence operation. [2025] FWCFB 188 DECISION [2025] FWCFB 188 2 Directions were subsequently issued providing for the parties to file submissions and any evidence upon which they wished to rely in relation to the form and timing of the orders that should be made as a result of the decision of the Full Bench. The MEU, AMWU, BHP and the OS Parties, Chandler Macleod and Workpac all filed written submissions. BHP and the OS Parties filed two witness statements of Riannon Harrison. Ms Harrison is employed by BHP Minerals Pty Ltd in the position of Manager Improvement – Payroll, Time & Reward. Chandler Macleod filed a witness statement of Louise Bennett, General Manager – Business Optimisation employed by RGF Staffing Pty Ltd. A further hearing was conducted before the Full Bench on 11 August 2025. [3] At the time of the hearing of the applications, BHP and the OS Parties sought only to be heard with respect to the timing of the operation of the orders and, in closing oral submissions, expressly disclaimed any issue with the form of the orders sought by the MEU and the AMWU. In the written submissions filed after the decision, however, BHP and the OS Parties made extensive submissions in relation to the form of the orders the Full Bench should make in addition to submissions in relation to the timing of the order. The submission particularly focused on the requirement in s 306E(9)(c) that an order “specify the regulated employees covered by the order”. The MEU and the AMWU complained about the late raising of the issue concerning the form of the orders sought and claim that it is productive of real and practical prejudice. It will be necessary to address this matter below. Specification of regulated employees [4] Section 306E(1) of the Act requires that the Commission make a regulated labour hire arrangement order if it is satisfied of the matters set out in paragraphs (a), (b) and (c) of that subsection. Section 306E(1A) and (2) set out circumstances in which the requirement to make an order in subsection (1) is lifted and in which the Commission must not make “the order”. Those subsections require the Commission to consider whether it is satisfied that the performance of work is not or will not be for the provision of a service, rather than the supply of labour and it is not fair and reasonable in all the circumstances to make the order. [5] Section 306E(9) and (10) of the Act set out what must be specified in a regulated labour hire arrangement order as follows: 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. Note: For paragraphs (b) and (c), additional employers and regulated employees of those employers may be covered by the order under section 306EA. 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. [2025] FWCFB 188 3 [6] There is no dispute between the parties in relation to the matters that must be specified in the orders to be made other than the extent to which the orders must “specify … the regulated employees covered by the order” for the purposes of s 306E(9)(c) and the day the orders comes into force for the purposes of s 306E(9)(e). There is no issue, in each case, with the specification of the regulated host, the employer and the host employment instrument for the purposes of s 306E(9)(a), (b) and (d) and no party submits that the orders should specify when the order ceases to be in force for the purposes of s 306E(10). [7] It is appropriate to first consider the requirement that the orders must “specify … the regulated employees covered by the order” for the purposes of s 306E(9)(c). BHP and the OS Parties make essentially two submissions in relation to s 306E(9)(c). First, they submit that the orders must specify with precision the employee groups comprising the regulated employees who are covered by the order so as to permit compliance with the orders. Second, it is submitted that the cohort of “regulated employees’ to be specified in a regulated labour hire arrangement order cannot extend beyond the scope of the work in respect of which the Commission received evidence and has reached the requisite states of satisfaction under s 306E(1) and (1A). [8] BHP and the OS Parties submit that orders should be made which describe the regulated employees covered by the orders by reference to a description of the type of work undertaken by employees of OS Production and OS Maintenance in the following terms: (a) in matter C2024/3850: production employees employed by OS MCAP Pty Ltd who perform overburden removal or coal mining work involving loading units, haul trucks, track dozers, excavators, wheel dozers, wheel loaders, graders, water trucks and service trucks at Peak Downs Mine in the State of Queensland and who would, if employed by BHP Coal Pty Ltd, be covered by the BMA Enterprise Agreement 2022; (b) in matter C2024/3857: production employees employed by OS MCAP Pty Ltd who perform overburden removal or coal mining work involving loading units, haul trucks, track dozers, wheel dozers, graders, water trucks and service trucks at Saraji Mine in the State of Queensland and who would, if employed by BHP Coal Pty Ltd, be covered by the BMA Enterprise Agreement 2022; (c) in matter C2024/3847: production employees employed by OS MCAP Pty Ltd who perform overburden removal or coal mining work involving loading units, graders, wheeled loaders, autonomous haul trucks, track dozers, and water trucks at Goonyella Riverside Mine in the State of Queensland and who would, if employed by BHP Coal Pty Ltd, be covered by the BMA Enterprise Agreement 2022; (d) in matters C2024/3849 and C2024/3859: maintenance employees employed by OS ACPM Pty Ltd who perform mobile maintenance work involving ultra class haul trucks, haul trucks, water trucks, service trucks and trailers at Peak Downs Mine in the State of Queensland and who would, if employed by BHP Coal Pty Ltd, be covered by the BMA Enterprise Agreement 2022; [2025] FWCFB 188 4 (e) in matters C2024/3856 and C2024/3860: maintenance employees employed by OS ACPM Pty Ltd who perform mobile maintenance work involving water trucks, haul trucks or ultra class haul trucks, ancillary maintenance work involving water trucks, wheeled loaders, tracked dozers, wheeled dozers, service trucks or graders, or coal handling and processing plant maintenance work involving the coal handling and preparation plant, the run of mine or train load out, or tyre maintenance work on rubber tyres onsite at Saraji Mine in the State of Queensland and who would, if employed by BHP Coal Pty Ltd, be covered by the BMA Enterprise Agreement 2022; (f) in matters C2024/3846 and C2024/3861: maintenance employees employed by OS ACPM Pty Ltd who perform mobile maintenance work involving ultra class haul trucks or field hydraulics maintenance work involving excavators and drills at Goonyella Riverside Mine in the State of Queensland and who would, if employed by BHP Coal Pty Ltd, be covered by the BMA Enterprise Agreement 2022. [9] WorkPac and Chandler Macleod submit that the orders made with respect to employees of those entities should specify the employees by reference to a description of the work performed by their employees. WorkPac and Chandler Macleod also submit that, consistent with a concession made by the MEU and the AMWU, the orders should exclude any of their employees supplied to perform work for entities other than the regulated host, including specifically Thiess, BUMA, OS Production and OS Maintenance. The form of the orders sought by WorkPac are as follows: (a) The regulated employees covered by the order are employees of the Employers who perform production work involving draglines, topsoil removal, drill and blast, mine services, pump and earthworks, coal mining, production processing or pre-strip activities in the Regulated Host's crews at the Saraji Mine in the State of Queensland and who would, if employed by the Regulated Host, be covered by the host employment instrument identified in A.4 (but excluding any employees of the Employers who are supplied to perform work for Thiess, BUMA, OS ACPM Pty Ltd, OS MCAP Pty Ltd or any person other than the Regulated Host at the Saraji Mine). (b) The regulated employees covered by the order are employees of the Employers who perform production work involving draglines, topsoil removal, drill and blast, mine services, pump and earthworks, coal mining, production processing or pre-strip activities in the Regulated Host's crews at the Goonyella Riverside Mine in the State of Queensland and who would, if employed by Regulated Host, be covered by the host employment instrument identified in A.4 (but excluding any employees of the Employers who are supplied to perform work for Thiess, BUMA, OS ACPM Pty Ltd, OS MCAP Pty Ltd or any person other than the Regulated Host at the Goonyella Riverside Mine). (c) The regulated employees covered by the order are employees of the Employers who perform production work involving draglines, topsoil removal, drill and blast, mine services, pump and earthworks, coal mining, production processing [2025] FWCFB 188 5 or pre-strip activities or ancillary maintenance work on dozers, scrapers, small loaders and graders, CHPP maintenance or medium vehicle maintenance such as maintenance on service trucks in the Regulated Host's crews at the Peak Downs Mine in the State of Queensland and who would, if employed by the Regulated Host, be covered by the host employment instrument identified in A.4 (but excluding any employees of the Employers who are supplied to perform work for Thiess, BUMA, OS ACPM Pty Ltd, OS MCAP Pty Ltd or any person other than the Regulated Host at the Peak Downs Mine). [10] The description of the regulated employees proposed by Chandler Macleod is as follows: The regulated employees covered by the Order are employees employed by the Employers who perform production work involving topsoil removal, drill and blast, mine services, pump and earthworks, coal mining, production processing or pre-strip activities or CHPP maintenance work in Regulated Host crews at the Peak Downs Mine in the State of Queensland and who would, if employed by the Regulated Host, be covered by the host employment instrument identified in A.4 (but excluding any employees of the Employers who are supplied to perform work for Thiess, OS ACPM Pty Ltd, OS MCAP Pty Ltd or any other person than the Regulated Host). [11] The MEU and the AMWU press for orders to be made in the form contained in the original applications made to the Commission. Those orders propose to simply refer, respectively, to the regulated employees being employees of OS Production, OS Maintenance, WorkPac or Chandler Macleod who perform work at the relevant mine. In the alternative, the MEU proposed that the orders specify that the regulated employees are employees of OS Production, OS Maintenance, WorkPac or Chandler Macleod who perform “production work and ancillary tasks” or “maintenance or service or repair work, and ancillary tasks” at a relevant mine. The alternative descriptions of the regulated employees proposed by the MEU for the Peak Downs mine, by way of example, are as follows: (a) Employees of OS MCAP Pty Ltd who perform production work and ancillary tasks at the Peak Downs Mine. (b) Employees of OS ACPM Pty Ltd who perform maintenance or service or repair work, and ancillary tasks at the Peak Downs Mine. (c) Employees of WorkPac Pty Ltd and WorkPac Mining Pty Ltd (WorkPac) who perform production or maintenance or service or repair work, and ancillary tasks at the Peak Downs Mine (the Mine) but excluding employees of WorkPac who are supplied by WorkPac to another person under a contract or arrangement between WorkPac and that person to perform work for the other person at the Mine. (d) Employees of Ready Workforce (a Division of Chandler Macleod) Pty Ltd and Chandler Macleod Group Limited (Chandler Macleod) who perform production or maintenance or service or repair work, and ancillary tasks at the Peak Downs Mine but excluding employees of Chandler Macleod who are supplied by [2025] FWCFB 188 6 Chandler Macleod to another person under a contract or arrangement between Chandler Macleod and that person to perform work for the other person at the Mine. [12] The AMWU proposed that the regulated employees be described in the following terms for the orders it seeks: Employees of OS ACPM engaged up to but not including the level of supervisor to perform maintenance, service work and ancillary tasks at Peak Downs, Saraji and Goonyella Riverside mines in the State of Queensland. [13] As we have observed, the disagreement between the parties as to the description required to be provided of the regulated employees covered by the orders has two aspects. The first submission made by BHP and the OS Parties is that they say that they are entitled to understand with precision the employees comprising the regulated employees and that, to achieve that outcome, the orders must be framed with that level of precision. BHP and the OS Parties say that the ordinary meaning of the expression “specify” or “specified” when it appears in a statutory instrument requires that a particular thing or subject matter be described with “unambiguous clarity”, be “unambiguously identified” or “made clear”.1 [14] There is little doubt that a statutory requirement that a matter be “specified” ordinarily requires that it be made explicit and clearly communicated. In Vanstone v Clark [2005] FCAFC 189; (2005) 147 FCR 299, for example, Black CJ said:2 On the Minister’s construction of cl 5(1)(k), which gives particular weight to the opening words of the clause, it still falls outside power as the relevant behaviour is not ‘specified’ behaviour. ‘Specified’ behaviour imports requirements of clarity and precision and this statutory concept is not satisfied by ‘vague generalities’: see Tickner v Chapman and the authorities usefully collected by Burchett J. Thus in Jolly v Yorketown District Council, Barwick CJ and Owen J considered that a statutory requirement for a notice to ‘specify’ certain matters required that it do so ‘in explicit terms’. The significance of this statement is illuminated by reference to Kitto J’s judgment in the same case where he stated that to specify means ‘to give not by inference but by direct statement’. To underline the point (if that be necessary), in Federated Engine- Drivers and Firemen’s Assn of Australasia v Broken Hill Proprietary Co Ltd, Barton J said that ‘[t]hings specified must be specific things. Here all is general. [15] As in all cases, what is meant by an expression is necessarily influenced by the context in which it is used. In Gantry Acquisition Corporation v Parker & Parsley Petroleum Australia Pty Ltd (1994) 51 FCR 554, Burchett J colourfully explained that“[a] word is not a locked box with static contents; it is more like a living cell, changing as it responds to the environment, which is its context”.3 Whilst the requirement in s 306E(9)(c) to “specify” the regulated employees covered by an order requires identification of the class or category of employees covered, the manner in which it is contemplated that might be done, and the degree of precision required, is necessarily shaped by the purpose of specifying the matters required to be identified in an order. [16] The principal impact of a regulated labour hire arrangement order is that, by operation of s 306F(2), the employer covered by the order must pay a regulated employee at no less than the protected rate of pay for the employee in connection with the work performed by the [2025] FWCFB 188 7 employee for the regulated host. That section is a civil remedy provision and, accordingly, a contravention of the obligation can result in the imposition of a pecuniary penalty and other remedies. In that context, it is important that a regulated labour hire arrangement order identifies the regulated employees covered by the order in a manner that permits compliance. The identity of the employees covered must be able to be ascertained. [17] That does not mean that specification must be of named employees or cannot be done by reference to a class or category of employees. BHP and the OS Parties do not suggest that it is necessary for a regulated labour hire arrangement order to specify the regulated employees by name, job title or position. In that respect, the Revised Explanatory Memorandum to the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Cth) explained that:4 Where the order is required to list the regulated employees covered by the order, it is not required to list each employee, but rather the class of employees that would be participating in the regulated labour hire arrangement. The orders are intended to be broad and to cover employees engaged to work as part of the regulated labour hire arrangement after the order is made. An order referenced in this section is an order made under the relevant section. [18] This is reflected in s. 306E which provides that circumstances in which the Commission is required to make a regulated labour hire arrangement include that a covered employment instrument that applies to the regulated host, would apply to the employees of the employer if the regulated host were to employ the employees to perform work of that kind. [19] That approach is consistent with the manner in which the Act otherwise contemplates that employers and employees may be specified in instruments having force of law. For example, modern awards impose obligations a contravention of which may result in the imposition of penalties.5 A modern award is required to contain a coverage term and must be expressed to cover “specified employers” and “specified employees”.6 The employers and employees covered by a modern award may be specified by inclusion in a specified class or classes, including by reference to a particular industry or part of an industry, or particular kinds of work.7 The Act evidently regards specification of employers and employees to be covered by an instrument by reference to a class or category as sufficient. [20] We do not consider that any question of precision arises in this matter. The form of orders sought by the MEU and the AMWU in their initial applications describe the regulated employees covered to include all employees supplied by, respectively, OS Production, OS Maintenance, WorkPac and Chandler Macleod who perform work at one of the relevant mines. There is no lack of clarity in the form of the order. Nor is there lack of clarity about whether the covered employment instrument would apply to the regulated employees if they were employed by BHP. Those entities, and the regulated host, can readily ascertain the employees covered by the order and to whom the obligation to pay the protected rate of pay attaches.8 The forms of order proposed by OS Production, OS Maintenance, WorkPac and Chandler Macleod, if anything, introduce greater uncertainty. [21] The second submission made by BHP and the OS Parties is that the cohort of regulated employees that must be specified in a regulated labour hire arrangement order cannot extend beyond the scope of work in respect of which the Commission has reached its requisite states of satisfaction in s 306E(1) and (1A). In summary, BHP and the OS Parties submit that s 306E(1)(a) requires the Commission to be satisfied that an employer is currently supplying, or [2025] FWCFB 188 8 will supply in the future, employees to perform “work” for a regulated host and s 306E(1)(b) requires examination of whether the employees would be covered by the covered employment instrument if employed by the regulated host to perform “work of that kind”. BHP and the OS Parties submit that “work” must be understood to refer to “the functions performed, and the duties undertaken, by the employees for the regulated host”9 and that the relevant “work” is the focus of the consideration required by s 306E(1) and (1A). [22] BHP and the OS Parties submit that a regulated labour hire arrangement order which properly “specifies” the regulated employees must identify with precision the performance of work in respect of which there was evidence which enabled the Commission to reach the requisite states of satisfaction required under s 306E(1) and (1A). They accept that, in some cases, the specification can be achieved by reference to the host instrument’s work classifications where they are sufficiently descriptive and align with the work that was the subject of the evidence. However, BHP and the OS Parties say it is necessary, in this case, to describe the particular work performed and/or exclude work otherwise covered by the host instrument to which the evidence did not extend. [23] As we have noted, the MEU, supported by the AMWU, complains that the submissions advanced by BHP and the OS Parties with respect to the specification of the regulated employees covered by any order the Commission might make were made only in the most recent submissions and that it suffers prejudice as a result of the late raising of the issue. BHP and the OS Parties deny that they have been tardy in advancing the submission. BHP and the OS Parties assert that the case they advanced engaged extensively at a granular level of the particular tasks the employees perform and the circumstances in which the work is performed and that it, at all times, disputed that the Commission should reach the state of satisfaction required by s 306E(1A) having regard to the matters listed in s 306E(7A). [24] We accept that BHP and the OS Parties did not foreshadow, prior to the Full Bench decision being handed down, that it had any issue with the form of the orders sought by the MEU and the AMWU or that the orders should, or must, contain some prescriptive description of the nature of the work performed by the regulated employees. In closing written submissions, BHP and the OS Parties submitted that, should the FWC nonetheless determine that any order should be made, they sought an opportunity to make further submissions, and if necessary adduce further evidence, “on the particular form of order, including the date of the RLHA Order’s operation”.10 They did not otherwise elaborate on any issue with the form of the orders sought. In closing oral submissions, counsel for BHP and the OS Parties sought only an opportunity to be heard “in relation to the timing of those orders” and said:11 VICE PRESIDENT GIBIAN: Is the issue that you anticipate one of timing? That is logistical arrangements, rather than form of the order, or that you would ask that - - - MR DALTON: Just timing. VICE PRESIDENT GIBIAN: Just timing. [25] However, even if it is belatedly raised, it is necessary for the Full Bench to consider the submission. The submission now advanced concerns the content the Commission is required to include in a regulated labour hire arrangement order by virtue of s 306E(9)(c). The Commission must make an order which complies with the requirements of the Act. The late raising of the issue, however, does have some implications for our consideration. The evidence advanced by BHP and the OS Parties did not attempt to demonstrate that different considerations arose, or [2025] FWCFB 188 9 would arise, for the purposes of s 306E(1A) or (7A) for different tasks or duties or if OS Production and OS Maintenance supplied employees to perform other types of work at the relevant mines. That is relevant to our consideration of what is necessary to specify the regulated employees who are covered by the orders in this case. [26] It is necessary to then consider the limitations which BHP and the OS Parties submit must be included in the description of the regulated employees who will be covered by a regulated labour hire arrangement order. The substance of the submission advanced by BHP and the OS Parties is that the regulated employees the Commission is able, and required, to specify as being covered by a regulated labour hire arrangement order must be narrowly confined to the particular set of duties undertaken by employees which are subject of evidence in the proceedings, or the precise roles being then undertaken by regulated employees at the time the order is made. That is, in our opinion, to take a too narrow view of the intended operation of s 306E and demands a degree of granularity in the description of the regulated workers which is not required by the provisions. [27] Section 306E(1)(a) establishes, as a precondition to an order being made, that the Commission must be satisfied that an employer supplies, or will supply, employees to perform work for the regulated host. However, the focus in s 306E(1)(b) then changes to ask whether a covered employment instrument would apply to those employees if the regulated host were to employ the employees to perform work of that kind. The subsection does not ask whether the covered employment instrument would apply to the employees if they were employed to perform the same work but, rather, refers to the same kind of work. In our view, the reference to a “work of a kind” is intended to incorporate a broad description of the kind of work being undertaken rather than a narrow set of specific duties, tasks or responsibilities. That view is supported by s 306D(1) which provides that: 306D References to kinds of work and work performed for a person etc. (1) A reference in this Part to work of a kind includes a reference to work that is substantially of that kind. … [28] That is, not only is the focus not on whether the work is precisely the same, but the kind of work need also only be substantially of the same. The extrinsic materials reflect an intention that regulated labour hire arrangement orders are intended to operate broadly by reference to generally described types of work. Referring to s 306D(1), the Revised Explanatory Memorandum to the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Cth) said:12 New subsection 306D(1) would provide that, for the purposes of Part 2-7A, a reference to work of a kind includes a reference to work that is substantially of that kind. This would clarify that the provisions of this Part are not intended to be read narrowly or limited to a specific kind of work. Labour hire arrangements can be complex and involve multiple parties and agreements. [29] Further, as we have observed, the Revised Explanatory Memorandum indicates that “[t]he orders are intended to be broad and to cover employees engaged to work as part of the regulated labour hire arrangement after the order is made” when referring to s 306E(9).13 That suggests the focus of an order is intended to be work performed as part of the same regulated labour hire arrangement, rather than a precise set of particular duties, tasks or responsibilities [2025] FWCFB 188 10 which, if the submissions of BHP and the OS Parties are accepted, would need to be recorded in every regulated labour hire arrangement order. [30] The construction advanced by BHP and the OS Parties also has the potential to impede the achievement of the statutory purposes of Part 2-7A of the Act. Subject to the specific requirements set out in its provisions, the Part generally, and s 306E in particular, is intended to permit the Commission to make an order the effect of which is to ensure that the engagement of employees through a labour hire arrangement cannot be used to pay employees lower rates of pay than those applicable to directly engaged employees of the regulated host performing that kind of work.14 If a regulated labour hire arrangement order is required to be limited in its coverage to a highly specific description of the tasks and duties being undertaken by regulated workers at the time the order is made, rather than to a kind of work, the order could be swiftly evaded. Any change to the duties being undertaken by regulated employees, or their assignment to perform different tasks, might arguably take them outside the coverage of the order and avoid the obligation to ensure that the regulated employees must be paid at least the protected rate of pay. That outcome might arise even if the regulated employees continue to perform work broadly of the same kind. [31] The difficulty can be demonstrated by reference to the specific submissions made in this matter. In relation to employees of OS Maintenance, BHP and the OS Parties submit that the regulated employees covered by the order should be limited to maintenance employees who perform “mobile maintenance work” involving a specific list of vehicle or machinery types. For example, in relation to the Peak Downs mine, it is proposed the order be limited to employees undertaking maintenance work involving ultra class haul trucks, haul trucks, water trucks, service trucks and trailers. If that order was made and a regulated worker was engaged to undertake maintenance work on another type of mining vehicle, the employee would fall outside the order even though the employee would unquestionably be performing work of the same kind, being maintenance work with respect to mining equipment. Such an approach would, in our opinion, undermine achievement of the apparent purposes of the new provisions and should not be adopted unless dictated by the text of Part 2-7A. In our opinion, such a narrow view of the requirement in s 306E(9)(c) to specify the regulated employees covered by an order is not required by the text of the provisions. [32] BHP and the OS Parties refer to other obligations imposed by Part 2-7A in the event that a regulated labour hire arrangement order is made. In particular, s 306EC requires that the regulated host give notice to employers covered by the order that new instrument is made that becomes the host employment instrument, s 306ED requires the regulated host to apply to vary an order if a new employer commences supplying an employee to perform work of a kind to which the order relates and s 306EE requires the regulated host to advise prospective tenderers if it could reasonably be expected that s 306ED will be engaged. We do not believe those provisions assist the analysis. Each provision turns upon identification of whether employees perform, or an instrument covers, work “of a kind” to which a regulated labour hire arrangement order relates.15 That is, with respect, consistent with a regulated labour hire arrangement order providing a general description of the type or kind of work being performed, rather than a narrow set of duties. [33] Some caution is to be applied before assuming that expressions contained in different parts of legislation as complex and frequently amended as the Act are necessarily used in a [2025] FWCFB 188 11 consistent manner.16 However, it is appropriate to observe that the expression “work of a kind” is used elsewhere in the Act in a manner that suggests it is intended to refer to a description of a general type of work rather than a specific set of duties or tasks. As we have noted, the coverage of a modern award can be described by specifying a class of employees by reference to “particular kinds of work”.17 It would be surprising if the Act intended the coverage of modern awards to be defined by reference to a precise description of particular tasks rather than a general description of a type of work. Modern awards can include outworker provisions if the work is “of a kind that is often performed by outworkers”.18 Again, it is likely that the question of whether work is often performed by outworkers is intended to require consideration of whether the work falls within a general type of work often undertaken in that manner. [34] It is appropriate then to turn to consider the specific wording that BHP and the OS Parties contend should be included in the specification of the regulated employees covered by the orders. The additional wording proposed by BHP and the OS Parties is at a number of levels. First, it is proposed that the specification of the regulated employees make clear that the regulated employees would, if employed by BHP Coal, be covered by the BMA Enterprise Agreement 2022 (the BMA Agreement). They submit that, if that is not done, the orders could cover managerial or supervisory employees supplied by OS Production or OS Maintenance. The MEU accepts that the orders can only cover employees to whom the BMA Agreement would apply if they were employed by BHP Coal. The MEU says that it is sufficient that the orders record that the BMA Agreement is the host employment instrument and is concerned that, if the orders are limited to employees covered by the BMA Agreement, they will need to be varied when a new enterprise agreement is made to cover employees of BHP Coal. In the circumstances of this matter, the orders should expressly specify that the regulated employees covered are those to whom the BMA Agreement would apply if they were employed by BHP Coal. That form of drafting draws in the coverage provisions of the BMA Agreement and specifies the employees covered by the orders in a manner which can be readily ascertained and tested. As BHP and the OS Parties submitted, the concern about the effect of the replacement of the BMA Agreement would appear to be answered by s 306EB(2) or could, if necessary, be addressed by way of a variation to the orders under s 603 of the Act. [35] Second, BHP and the OS Parties submit that the description of the regulated employees covered by the orders should at least include reference to “production employees” or “production work” for orders to cover OS production and “maintenance employees” or “maintenance work” for orders to cover OS Maintenance. In that respect, BHP and the OS Parties pick up the wording in the MEU’s alternative submission. The additional description is probably unnecessary if the regulated employees are specified by reference to the coverage of the BMA Agreement. The BMA Agreement covers employees who perform work covered by Schedule A of the Black Coal Mining Industry Award 2020 (the Black Coal Award) and who are engaged at the Mines in the classifications prescribed by the Agreement.19 Schedule A to the Black Coal Award refers to production and engineering employees in the black coal mining industry. The classifications in the BMA Agreement are generally described and divided into a “production stream” and a “maintenance stream”.20 However, we think it is appropriate in the present orders to refer to regulated employees undertaking “production work” or “maintenance work” as appropriate to the entity covered by each order. [36] Third, the forms of order proposed by BHP and the OS Parties propose that the regulated workers covered by the orders should be limited by a description of the specific types of [2025] FWCFB 188 12 equipment used in their work, in the case of production employees, or in relation to which maintenance is performed for maintenance employees. We do not consider that the Commission is required to specify the relevant regulated employees in that way, or that it is appropriate to do so in this matter. The nature of the arrangements under which employees of OS Production and OS Maintenance are supplied to perform work for BMA are governed by Framework Agreements and Site Work Packages issued under the Framework Agreements. The nature of the arrangements was considered in detail in our earlier decision.21 However it is necessary to refer to the nature of the arrangements again for present purposes in overview. [37] In summary, the Framework Agreement for OS Production permits BMA to request services of the same character or nature as those set out in Schedule 1.22 The services referred to in Schedule 1 include any “services to deliver the Target Volume”, including excavate, load, haul and dump; coal mining and haulage; reject haulage; bulk dozer push; rehabilitation services; and “any other service as described in a Site Work Package”.23 The Production Framework Agreement does not limit OS Production employees to using particular types of equipment and any “BMA equipment” may be used. The present Site Work Packages for OS Production list “BMA equipment” that will be supplied to OS Production but also permit other work to be required as “Daywork” outside the current scope relating to the Site Work Package. The evidence does not support a finding that, even at present, OS Production employees are supplied to perform work only on a limited range of equipment or that they could not be required to utilise other equipment. There is not the slightest evidence that, if other types of equipment were used by OS Production employees, the arrangements under which the work is performed would be different. It could be performed under the same Framework Agreement. Furthermore, the MEU referred to evidence that additional pieces of equipment, not mentioned in the draft orders proposed by BHP and the OS Parties, are being used by OS Production employees. [38] The Framework Agreement for OS Maintenance permits BMA to request services of the same character or nature as those set out in Schedule 1.24 The services set out in Schedule 1 include day to day maintenance of the Maintained Equipment; undertaking breakdown, call out, recovery, accident damage and unplanned corrective maintenance work; undertaking troubleshooting and diagnostic work; booking and utilising spare parts for the Maintained Equipment from the Site or offsite warehouse; and “any other Service as described in a Site Work Package”.25 “Maintained Equipment” refers to “the equipment on which OS is to perform the Services, as set out in the relevant Site Work Package”. As such, the Framework Agreement does not restrict the type of equipment in relation to which OS Maintenance employees may perform work. The present Site Work Packages list equipment in relation to which maintenance work will be performed but also requires that OS Maintenance continued to undertake maintenance work if there are changes to the “OS Maintained equipment” and provides for Daywork which can include “maintenance activities relating to equipment not currently listed in Appendix A”. Again, the evidence does not support a finding that, even at present, OS Maintenance employees are supplied to perform work maintaining a limited range of equipment and there is not the slightest evidence that, if other types of equipment were required to be maintained, the arrangements under which the work is performed would be different. To the contrary, work on equipment not referred to in the Maintenance Framework Agreement could be performed under that Agreement. [39] Fourth, in the case of production work undertaken by employees of OS Production, BHP and the OS Parties submit that the orders should only specify that they cover employees [2025] FWCFB 188 13 who perform “overburden removal or coal mining work”. In oral submissions, counsel for BHP and the OS Parties emphasised that the evidence indicated that employees of OS Production do not presently undertake work in connection with dragline operations, drill and blast, mine services and pump and earthworks. In the alternative, it was submitted that those operations should be expressly excluded from the specification of the regulated employees covered by the regulated labour hire arrangement orders which the Commission is required to make. Counsel submitted that work associated with dragline operations, drill and blast, mine services and pump and earthworks “could be highly specialised” and “could involve a contractor providing their own equipment as well”. BHP and the OS Parties submit, as a result, the Commission is required to exclude OS Production employees performing work associated with those operations from the description of regulated employees covered by the orders to remain faithful to the case that was brought by the MEU and the evidence received by the Commission. [40] The submission is founded on an assumption that production work undertaken with respect to, for example, dragline operations or drill and blast is a different “kind of work” to work undertaken in relation to overburden removal or coal mining work. No evidentiary foundation has been established by BHP and the OS Parties for the submission that work involving dragline operations, drill and blast, mine services and pump and earthworks is capable of being described as a different “kind of work” or that, if OS Production employees were assigned to perform that work, that the arrangements would be different. The work could be assigned to OS Production employees under the present Framework Agreement. Production work with respect to each of those operations would be covered by Schedule A to the Black Coal Award and the same classification structure in the BMA Agreement within the “Production stream”.26 We do not consider that BHP and the OS Parties have established that the work involved in other parts of coal production operations is a different “kind of work” such that it is necessary or appropriate to narrow the specification of the regulated employees covered by reference to those undertaking tasks associated with overburden removal or coal mining work. [41] It is, finally, necessary to address the form of orders that should be made with respect to employees of WorkPac and Chandler Macleod supplied to perform work at one of the relevant mines. WorkPac and Chandler Macleod did not make submissions as to the description or manner in which the orders should specify the regulated employees to be covered which extended beyond the submissions of BHP and the OS Parties other than in one respect. Consistent with a concession made by the MEU and the AMWU, WorkPac and Chandler Macleod submit that the orders should exclude employees supplied to perform work for or under a contract with a person other than the regulated host. The proposed exclusion is directed at the possibility that WorkPac or Chandler Macleod supply employees on a labour hire basis to perform work for external contractors working at the mines, such as Thiess or BUMA. We accept that, for the avoidance of doubt, the regulated employees should be specified in a manner that excludes employees supplied to WorkPac or Chandler Macleod to perform work under a contract with a person other than BHP Coal. Timing of operation of orders [42] Section 306E(9)(e)(ii) of the Act requires that a regulated labour hire arrangement order specify the day the order comes into force which can be, relevantly, the day the order is made or a later day. The MEU and the AMWU submit that the orders should be made and come into [2025] FWCFB 188 14 force immediately or, at least, no later than 17 August 2025. WorkPac and Chandler Macleod submit that the orders which apply to those entities should come into force no earlier than 25 August 2025. BHP and the OS Parties submit that the orders should come into force on 30 November 2025 or, in the alternative, 19 October 2025. In either scenario, BHP and the OS Parties are prepared to give an undertaking to back pay the regulated employees to the date of the decision to ameliorate the prejudice flowing from a deferred operative date. [43] The MEU submits that s 306E(9)(e) establishes as a starting or default position that a regulated labour hire arrangement order comes into force on the day that it is made (at least if that is after 1 November 2024). It says that, although the Commission may specify a later date, specification of a later date represents a deviation from the default position and there should be sound and good reasons for a departure from that position, particularly given that orders under s 306E cannot operate retrospectively. The MEU submits that it would be antithetical to addressing the mischief dealt with by Part 2-7A of the Act for the operation of the orders to be delayed to any appreciable extent. [44] We do not accept that the language in s 306E(9)(e) creates a default position or presumption that a regulated labour hire arrangement order should come into force on the day it is made. The subsection makes clear that an order cannot come into force earlier than on the day that it is made. The Commission otherwise has broad discretion to determine that an order commence on any later day. As BHP and the OS Parties point out, other provisions of the Act expressly require that the Commission be satisfied it is “appropriate” to determine a later day for the commencement of an order or instrument.27 Section 306E(9)(e) does not do so. [45] Having said that, the consequences of specifying a later day may be relevant to the discretionary decision the Commission is required to make when determining the day on which a regulated labour hire arrangement order comes into force. The consequence of any delay is that the regulated employees will continue to receive a rate of pay that will, in most instances, be lower than the protected rate of pay notwithstanding that the Commission has concluded that the requirements for the making of an order have been met. As BHP and the OS Parties implicitly acknowledge by proffering an undertaking in relation to back pay, the prejudice that will be caused to the regulated employees by a delay is relevant, and likely to be significant to, the discretionary decision specifying the day an order comes into effect. [46] BHP and the OS Parties submit that the orders required to be made in this matter should not come into force until a later date on two bases. The first is that there are said to be uncertainties in relation to how the protected rate of pay is to be calculated with reference to the BMA Agreement. BHP and the OS Parties submit that it is unclear how the career structure in Schedule 9 of the BMA Agreement is to be applied and how the protected rate of pay is to be calculated for regulated employees who are working different rosters to BHP Coal employees. We do not consider that this consideration warrants more than a short delay to the commencement of the orders. The only evidence of any uncertainty in relation to the calculation of the protected rate of pay is correspondence sent by BHP and the OS Parties dated 5 August 2025. That correspondence arose only after the MEU and the AMWU filed submissions indicating that there had been no indication of any disagreement in relation to the calculation of the protected rate of pay. We do not consider the matters raised should take a substantial period of time to resolve. [2025] FWCFB 188 15 [47] The second reason for a delay advanced by BHP and the OS Parties is that they say it will take until at least 19 October 2025 to develop a bespoke payroll system which can properly and appropriately calculate and process payments to OS Production and OS Maintenance employees which meet the protected rate of pay as well as existing entitlements of the OS employees. In that respect, BHP and the OS Parties rely upon the witness statements of Riannon Harrison, Manager Improvement – Payroll, Time & Reward for BHP Minerals Pty Ltd. Ms Harrison indicates that a project involving planning for the changes to the OS payroll systems so that the OS entities can comply with the pay implications of the regulated labour hire arrangement orders has been ongoing since November 2024. Ms Harrison asserts that determination of BHP’s business requirements took until April 2025, design and build of the payroll configurations will be completed by 5 September 2025, testing will take until 13 October 2025 and deployment of the payroll solutions will take until 19 October 2025. [48] Ms Harrison was cross-examined in relation to her evidence. With respect to Ms Harrison, she was unable to provide very much detail in relation to the project being undertaken by the OS entities to comply with the requirements of regulated labour hire arrangement orders. Ms Harrison was not involved at earlier stages of the project, was unable to say who had decided to pursue the creation of a new payroll system with a “top-up method” for calculating rates of pay or why that decision was taken and was unable to persuasively explain why such a period of time is necessary to create and implement systems to ensure compliance with the requirement of the orders. It was also unclear, from Ms Harrison’s evidence, how advanced the work is in relation to building and testing the changes to the payroll system. [49] The position of the OS entities stands in stark contrast to the position of Chandler Macleod and WorkPac, both of which are able to determine the protected rate of pay and implement changes to their payroll systems in a far shorter period of time. Although the number of employees of OS Production and OS Maintenance is larger, it is difficult to accept that a business the size of BHP and its associated entities is unable to implement pay arrangements within a similar period of time. We also observe that the classifications and pay arrangements under the BMA Agreement and of the OS entities are relatively straightforward. The number of classifications is small, and employees generally receive annual salaries with a small number of allowances, based on rosters. We note that the evidence in relation to rosters worked by OS employees indicates that those employees work on a single type of roster. We do not accept that it should take the period of time asserted by BHP and the OS Parties to determine the amounts required to be made to OS employees to satisfy the requirements of the orders. [50] The undertaking proffered by BHP and the OS Parties is a relevant consideration in the decision to specify the day the orders come into force. The undertakings proffered by BHP and the OS Parties are in the following terms: OS MCAP Pty Ltd undertakes to the Fair Work Commission that, once regulated labour hire arrangement orders are made under s 306E of the Fair Work Act 2009 (Cth) in Fair Work Commission matter nos. C2024/3847, C2024/3850 and C2024/3857 and after payment obligations within them take effect, OS MCAP Pty Ltd will backpay the regulated employees employed by it and covered by such an order the amounts that would have been payable to them had the relevant order specified the day that payment obligations took effect as 7 July 2025. Backpay will also be provided to employees of OS MCAP Pty Ltd covered by the order and who are employed on or after 7 July 2025 but cease employment before payment obligations in the [2025] FWCFB 188 16 order take effect of the amounts that would have been payable to them had the relevant order specified the day that payment obligations took effect as 7 July 2025. OS ACPM Pty Ltd undertakes to the Fair Work Commission that, once regulated labour hire arrangement orders are made under s 306E of the Fair Work Act 2009 (Cth) in Fair Work Commission matter nos. C2024/3846, C2024/3849, C2024/3856, C2024/3859, C2024/3860 and C2024/3861 and after payment obligations within them take effect, OS ACPM Pty Ltd will backpay the regulated employees employed by it and covered by such an order the amounts that would have been payable to them had the relevant order specified the day that payment obligations took effect as 7 July 2025. Backpay will also be provided to employees of OS ACPM Pty Ltd covered by the order and who are employed on or after 7 July 2025 but cease employment before payment obligations in the order take effect of the amounts that would have been payable to them had the relevant order specified the day that payment obligations took effect as 7 July 2025. [51] BHP and the OS Parties indicated that the undertaking was subject to the outcome of the judicial review application that those parties have filed. Counsel for BHP and the OS Parties clarified that the undertaking is to pay back payments to regulated employees back to the date of the Full Bench’s decision on 7 July 2025 when the orders come into force unless, before that date, a stay order is obtained from the Federal Court. [52] The MEU and the AMWU accepted that BHP would honour its undertaking at least unless a stay is obtained in the Federal Court proceedings. The undertaking provides some comfort in providing some time prior to the commencement of the orders. However, we are not convinced that the undertaking supports delaying the date on which the orders come into effect to the extent sought by BHP and the OS Parties. In that respect, the undertaking does not offer to pay interest on the amounts to be paid to regulated employees and no mechanism has been identified by which employees could enforce the undertaking in the event there is some dispute as to the amount of backpay that should be paid. We also note that the undertaking is not unconditional and whether it is honoured will depend on whether an order in the nature of a stay is sought, or obtained, in the Federal Court proceedings. Having said that, in specifying the date for the commencement of the orders, we have accepted the undertaking proffered and would have determined an earlier date but for the undertaking. [53] Having considered all of the submissions and evidence relied upon by the parties, we have determined that the regulated labour hire arrangement orders that must be made in these matters will come into force on either 14 or 15 September 2025 to correspond with the pay cycle of the relevant employer. Conclusion and disposition [54] Regulated labour hire arrangement orders will be made under s 306E(1) of the Act separately to this decision reflecting the form of orders we have decided upon. [2025] FWCFB 188 17 VICE PRESIDENT Appearances: P Boncardo, of counsel, for the Mining and Energy Union, instructed by J Patrick F Anwar, of counsel, for the Australian Manufacturing Workers’ Union, instructed by K Presdee and D Peatey R Dalton KC and A Pollock, of counsel, for the BHP Parties, instructed by M Cameron, R Doyle and I Le Mare-Hutton T Walthall, solicitor, of MinterEllison for WorkPac Pty Ltd and WorkPac Mining Pty Ltd B Atton, solicitor, of HFW Australia for Chandler Macleod Group Ltd and Ready Workforce (a Division of Chandler Macleod) Pty Ltd Hearing details: 11 August 2025. Brisbane (using Microsoft Teams) Printed by authority of the Commonwealth Government Printer <LH200076 PR791032> 1 By reference to Gantry Acquisition Corporation v Parker & Parsley Petroleum Australia Pty Ltd (1994) 51 FCR 554 at 569 (Burchett J) and Beame v Commissioner of Police [2023] NSWSC 347 at [75] (Yehia J). 2 Vanstone v Clark [2005] FCAFC 189; (2005) 147 FCR 299 at [13] (Black CJ). See also Harofam Pty Ltd v Scherman [2013] VSCA 104; (2013) 42 VR 372; at [13]-[15] (Nettle AP, Neave JA and Garde AJA) and Beckingham v Browne [2021] VSCA 362 at [52]-[53] (Maxwell P). 3 Gantry Acquisition Corporation v Parker & Parsley Petroleum Australia Pty Ltd (1994) 51 FCR 554 at 569 (Burchett J). 4 Revised Explanatory Memorandum to the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Cth) at [656]. 5 Fair Work Act 2009 (Cth), s 45. 6 Fair Work Act 2009 (Cth), s 143(2). 7 Fair Work Act 2009 (Cth), s 143(5)(a) and (b) and (6). 8 Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53 at [135]. 9 By reference to Application by the Mining and Energy Union re Rix’s Creek [2025] FWCFB 12 at [29]-[31]. 10 Outline of Closing Submissions for OS Production, OS Maintenance and BHP Coal dated 14 February 2025 at [127]. 11 Transcript, 18 February 2025, PN9557-9559. 12 Revised Explanatory Memorandum to the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Cth) at [623]. [2025] FWCFB 188 18 13 Revised Explanatory Memorandum to the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Cth) at [656]. 14 Applications by the Mining and Energy Union re: Goonyella Riverside Mine [2025] FWCFB 134 at [50]. 15 See, particularly, Fair Work Act 2009 (Cth), ss 306EB(1)(c) and 306ED(1)(a) and (b). 16 Blood-Smyth v Carver [1965] NSWR 946 at 950; Desai v Minister for Immigration and Multicultural Affairs [2002] FCA 320; (2002) 117 FCR 269 at [27]-[31] (Drummond J); Application by Davies [2025] FWC 1363 at [24]. 17 Fair Work Act 2009 (Cth), s 143(5). 18 Fair Work Act 2009 (Cth), s 140(1)(b). 19 BMA Enterprise Agreement 2022, clause 1.1(b). 20 BMA Enterprise Agreement 2022, Schedule 9. 21 Applications by the Mining and Energy Union re: Goonyella Riverside Mine [2025] FWCFB 134 at [94]-[107]. 22 Production Framework Agreement made on 28 July 2022, clause 3.1. 23 Production Framework Agreement made on 28 July 2022, Schedule 1. 24 Maintenance Framework Agreement, clause 3.1. 25 Maintenance Framework Agreement, Schedule 1. 26 BMA Enterprise Agreement 2022, clause 2 of Schedule 9. 27 See, for example, Fair Work Act 2009 (Cth), ss 49(2) and 166(2)