Same job, more pay?
A number of same job, same pay (regulated labour hire arrangement) orders have now been made by the Fair Work Commission (FWC). These decisions are slowly shedding more light on how these new rules operate. For example, in the Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53, the FWC Full Bench held that casual employees of labour hire companies were entitled to the benefit of a same job, same pay order, even though the host’s enterprise agreement only covered full time employees paid an annualised salary.
In a decision which looked at the requirement for the FWC to ensure an order is “fair and reasonable in all the circumstances”, the FWC held that labour hire casuals must receive equivalent pay to direct full-time employees even when there is no casual classification under the host agreement. It did not accept arguments to the effect that this meant that casual labour hire employees would be paid more than directly hired permanents for the same work, meant it would not be fair or reasonable for he order to be made, taking into account the other context (including the pay differential between the labour hire workers and direct employees on site).
The FWC rejected arguments that including casuals was unfair or unreasonable, stating that the casual loading compensates for different entitlements but does not exempt casuals from pay parity requirements. This was even though the FWC acknowledged that the effect of the decision would be that “the protected rate of pay calculated in the manner contemplated by the parties may involve a degree of overcompensation. At least for part-time and casual employees, and employees otherwise undertaking crib relief or floater work, the protected rate of pay calculated in the manner prescribed by s 306E(4) or (5) is likely to result in CoreStaff employees being paid a rate which takes into account overtime and additional or unsociable hours which the employee does not perform.” The decision acknowledges practical challenges but confirms they can be managed through dispute resolution provisions in the Fair Work Act 2009 (Cth).
Another key part of the same job, same pay provisions, being the service contractor exemption, is currently being tested in an application by the MEU against BHP and other labour hire companies at BMA mines, which is currently before the FWC Full Bench awaiting decision. Once this decision is handed down, we hope there will be further clarity regarding the extent and operation of when a subcontractor is supplying services versus labour.
Understanding these new rules is critical for both suppliers and users of labour and contracted services. At the very least, to understand the potential total cost impacts of these services should an application be made (noting applications have been made by individual employees as well as unions!). We can help you understand and plan for these contingencies. Get in touch to find out more.