Same Job Same Pay – What does the Fair Work Commission say?

As many members will already be aware, the “same job, same pay” framework introduced by the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) amends the Fair Work Act 2009 (Cth) (FW Act) to empower the Fair Work Commission (FWC) to make a “Regulated Labour Hire Arrangement Order” (RLHAO) if certain requirements are met. Squire Patton Biggs explains.

Under a RLHAO, labour hire workers engaged by a host company must be paid no less than the host company’s employees covered by the host’s enterprise agreement if the labour hire worker would be covered by the enterprise agreement had they been an employee of the host.

Some exceptions may apply, such as for trainees, businesses with fewer than 15 employees, or employment periods less than three months.

Recent Decisions

Upon the implementation of the “same job, same pay” framework, several applications for RLHAOs had been made by unions, with the Mining and Energy Union (MEU) in particular lodging a high number of applications (24 applications to date, with 5 applications already resulting in the making of RLHAOs and the others still before the FWC).

In an interesting trend, a number of labour hire providers and the host employers who are the respondents to these applications have elected not to oppose the applications, allowing the FWC to make the orders “on the papers” (i.e. without a hearing).

In one case, the application ended up being withdrawn when the host employer offered to directly employ the labour hire workers.

The most recent decisions largely reinforce this trend, with the one exception being that an employer, FES Coal Pty Ltd, sought to limit the scope of the RLHAO.

Applications by the MEU re Coppabella Mine (C2024/5555) (C2024/5558) (C2024/6046)

Three applications were made by the MEU under s 306E of the FW Act for RLHAOs applying to Peabody Energy Australia PCI Mine Management Pty Ltd as the regulated host and Protech GPS Pty Ltd, WorkPac Pty Ltd and WorkPac Mining Pty Ltd, and FES Coal Pty Ltd trading as One Key Resources (One Key) as the employers (collectively, employers).

The employers did not oppose the application of the terms of the proposed RLHAO.

Applications by the MEU re Capcoal Surface Operations (C2024/5507, C2024/5508)

The MEU made two applications under s 306E of the FW Act for RLHAOs In both applications, Anglo Coal (Capcoal Management) Pty Ltd was the regulated host, with WorkPac Pty Ltd and WorkPac Mining Pty Ltd being the employers in one application and Mobilise Group Pty Ltd trading as AWX Pty Ltd being the employer in the other.

Once again, neither the regulated host nor the employer(s) opposed the order sought, agreeing for the matter to be determined on the papers. The FWC found it was required under s 306E to make the RLHAOs sought by the MEU.

Application by the Energy by MEU re Poitrel Mine (C2024/4214)

The MEU applied under s 306E of the FW Act for a RLHAO applying to Stanmore SMC Pty Ltd as the regulated host and WorkPac Pty Ltd and WorkPac Mining Pty Ltd as employers. The regulated host and the employers similarly did not oppose an order being made.

Application by the MEU re Boggabri Coal Mine (C2024/4157)

The MEU applied under s 306E of the FW Act for a RLHAO applying to Boggabri Coal Operations Pty Ltd as the regulated host and FES Coal Pty Ltd as an employer.

Whilst the employer did not oppose the application, it opposed the form of the order sought by the MEU and submitted that the FWC should make an order in a more limited form confined to employees who are currently supplied under a particular labour hire contract.

Its concern was that, in the absence of the additional wording, it would be open to argue that the order not only captured current labour hire employees supplied by FES, but also all future FES employees based at the Boggabri Mine.

FES submitted that if it was to commence to supply further services (i.e. services other than labour hire services) to Boggabri Coal, such an arrangement should not automatically fall within the scope of the order made without consideration being given to whether the FWC was satisfied that the performance of work “is not or will not be” the subject of an order under s306E(1A).

The FWC rejected this more limited order for various reasons, one of which being that in the event there was some uncertainty in relation to the coverage of the order, or if it was to be contended that the order applies to employees who should be excluded from its operations, the employer could apply to the FWC to vary the order.

Key takeaways

The continuing trend from these emerging cases indicates the willingness of the FWC to make RLHAOs So far, at least, RLHAOs have been made in blue collar workforce environments, which will not come as a particular surprise to members.

For those members who hire into blue collar workforces, you can expect that you will likely end up being the subject of a RLHAO.

Members who supply labour hire workers are encouraged to familiarise themselves with the “same job, same pay” reforms so they can comply with their new obligations, to enable them to properly understand the financial, legal and operational impacts.

Members also need to be forearmed to be able to deal with disputes as they arise, with the most common dispute likely to be about how to calculate “the protected rate of pay”. There are a range of steps members can take to prepare for the impact to their businesses.

The NESA (National Employment Services Association) publication: ‘Employer’s Guide: Regulated Labour Hire Orders’ provides some useful tips on such steps.

At page 54 there is a handy Risk Assessment Checklist that can be used as a starting point for your analysis: 4531-ACCI-guides RegulatedLabour-Hire-Arrangements-WEBNESA pdf