Commonwealth Consolidated Acts

FAIR WORK ACT 2009 - SECT 306EA

Determination that application covers additional employers and employees

  (1)   If an application for a regulated labour hire arrangement order is made in relation to a regulated host, an employer and one or more employees of the employer, the FWC may determine that the application is taken to also relate to:

  (a)   one or more other employers (each of which is an additional employer ) that the FWC is satisfied supply or will supply, in the manner referred to in paragraph   306E(1)(a), one or more employees to perform work, for the regulated host, of the kind in relation to which the application was made; and

  (b)   the employees referred to in paragraph   (a) of this subsection   (each of whom is an additional regulated employee ).

Note:   The employees referred to in paragraph   (a) of this subsection are regulated employees (see subsection   306E(5)).

  (2)   The FWC may make the determination:

  (a)   on its own initiative; or

  (b)   on application by any of the following:

  (i)   the applicant for the order or any other person who could have applied for the order (see subsection   306E(7));

  (ii)   the employer mentioned in paragraph   306E(1)(a);

  (iii)   an employer that supplies or will supply employees as referred to in paragraph   (1)(a) of this section;

  (iv)   a person who is such an employee;

  (v)   an employee organisation that is entitled to represent the industrial interests of such an employee.

  (3)   If the FWC makes such a determination, the FWC must seek the views of the following before deciding whether to make the regulated labour hire arrangement order:

  (a)   the additional regulated employees;

  (b)   employee organisations that are entitled to represent the industrial interests of the additional regulated employees;

  (c)   the additional employers.

Additional employers and employees in regulated labour hire arrangement order

  (4)   Subject to subsections   (5) and (6), if the FWC makes a determination under subsection   (1) in relation to an application for a regulated labour hire arrangement order, the FWC may specify in the regulated labour hire arrangement order (if made) that, in addition to the persons referred to in paragraphs 306E(9)(b) and (c), the order also covers:

  (a)   any or all of the additional employers; and

  (b)   additional regulated employees of those employers.

  (5)   The FWC must not specify an additional employer or additional regulated employees of the employer under subsection   (4) unless:

  (a)   the FWC is satisfied of the matters mentioned in subsection   306E(1) in relation to the additional employer and the additional regulated employees; and

  (b)   the FWC is satisfied that the covered employment instrument that would apply to the additional regulated employees, as referred to in paragraph   306E(1)(b), is the host employment instrument covered by the order; and

  (c)   the FWC is satisfied that the performance of the work by the additional regulated employees 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   306E(7A) in relation to the additional employer and the additional regulated employees.

  (6)   The FWC must not specify an additional employer or additional regulated employees of the employer under subsection   (4) if the FWC is satisfied that it is not fair and reasonable in all the circumstances to do so, having regard to:

  (a)   the views (if any) of persons referred to in subsection   (3); and

  (b)   any matters mentioned in subsection   306E(8) in relation to which submissions are made, to the extent the submissions relate to the additional employer and the additional regulated employees.