Enacted last year under the Closing the Loopholes update to the Fair Work Act, the changes to labour hire workers known as Same Job Same Pay, came into effect today and have real impact on workers, employers and host companies when there is a labour hire situation.  Coinciding with the commencement the Fair Work Commission has published formal Guidelines for parties in the operation of the Same Job Same Pay provisions and structures.

Background

As ACAPMAg explored in December last year, the Fair Work Act was amended by the Closing Loopholes Bill No. 1 in early December 2023 – see here for recap.  The changes included the introduction of changes to the Labour Hire rules.

Often referred to as ‘Same Job Same Pay’ the labour hire changes were contentious in some segments and despite receiving significantly more press than other elements of the Bill(s) the operation of the labour hire changes has caused many questions and a bit of confusion.

The federal labour hire provisions are in addition to the current State provisions, such as the requirement to use a licenced or registered labour hire provider in some States.

What changed with the new laws is that labour hire providers are required to pay labour hire employees no less than the rate of pay that employees of the host business receive for the work.  This is the essence of ‘Same Job Same Pay’ and is referred to in the Act as the ‘protected rate of pay’.

If the labour hire provider is, found to or suspected to, have breached the ‘protected rate of pay’ requirement can be taken to the Fair Work Commission who can issue a Labour Hire Arrangement Order that enforces the rate of pay that is to apply to the labour hire provider employees when they are at the host business.

Impact

The first of the Orders have been issued and the impact is substantial.

Among the first to benefit are more than 800 domestic Qantas flight attendants, who will see pay rises of up to 28 per cent backdated from today in their next pay cheque.  As a result of the changes, Qantas has also agreed to bring a further 2,450 long-haul cabin crew who were employed via labour hire into direct employment, meaning they will receive the same pay and entitlements as other long-haul staff.

Also set to benefit are around 320 labour hire workers at the Batchfire Callide mine in Queensland, who will receive an astonishing $20,000 more each year after an order issued by the Fair Work Commission.
One of the biggest beneficiaries will be workers at the South 32 Cannington silver and lead mine near Cloncurry, who are expecting pay increases of up to 60 percent.
Thousands more Australia workers are likely to benefit from the new laws, with more than 40 ‘Same Job, Same Pay’ applications currently in the pipeline before the Fair Work Commission.

Guidelines

Today the Fair Work Commission has released formal Guidelines on the operaiton of the Same Job Same Pay provisions – https://www.fwc.gov.au/documents/resources/guidelines-for-regulated-labour-hire-arrangement-orders-2024-10-31.pdf

ACAPMA Member Q & A

Does this mean that we cant use labour hire workers?

No.  The changes do not remove the option of a business to employee additional or seasonal staff as labour hire workers.

Does this mean that we will have to pay our staff the same as the labour hire workers we bring in over Christmas?

No.  The changes place responsibilities on the labour hire PROVIDERS, the business providing you with the workers.  The PROVIDER is required to ensure the workers they provide to you are receiving at least the same as they would get if they were your employees.

Does this mean we have to give different information to the businesses we hire labour hire workers from?

Yes.  In order to ensure that they are paying their employees, that they are hiring to you, at least what your direct employees make for that same work, your labour hire provider may ask for a raft of information including;

  • the size of the business (the provision for protected rate of pay does not apply to workers placed in small business), and
  • if you have any employees that do the kind of work the labour hire workers will be doing for you, and
  • the employment instrument, classification and remuneration that applies to your own employees doing the work (the Award/EBA, classification and pay rate and penalties), and
  • any incentive based payments or allowances you provide to your own employees doing the work.

More information

For more information on the operation of labour hire since the adoption of the changes on 15 December 2023 see – https://www.fairwork.gov.au/find-help-for/contracting-labour-supply-chains

Here to Help

ACAPMA members are reminded that ACAPMA has a series of resources from Quick Reference Guides to template letters and investigation and reporting checklists that can assist with ensuring compliant and consistent responses in this area, and can call on the advice and support of the ACAPMA Employment Professionals via employment@acapma.com.au .

HR Highlights are things to consider, implement and watch out for in your business.

They are provided as general advice and you should seek further advice on your situation by emailing employment@acapma.com.au it’s free for members.

ACAPMA Membership is affordable at only $860 per year for a single site and valuable with sites gaining HR advice support and representation as well as a raft of other benefits and discounts.  Click here to learn more about ACAPMA Membership.

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