Same Job, Same Pay and Labour Hire: What Host Employers Need to Know in 2026

Overview

• Same Job, Same Pay orders can only be made where the host is covered by an employment instrument such as an enterprise agreement, so award-only hosts fall outside the framework and the practical impact on them today is limited.
• No order can be made against a host that is a small business employer with fewer than 15 employees, and placements running no longer than the default 3-month exemption period are not caught even where an order is in force.
• When an order applies, the labour hire employer must pay the protected rate of pay, which includes bonuses, loadings, allowances and penalty rates, and that cost flows commercially into the host’s charge rate.
• Since 1 November 2024 orders have concentrated in mining, aviation and meat processing; the contested BHP decision covered more than 2,000 workers with pay rises reported around $30,000 a year, and the Federal Court dismissed BHP’s challenge in December 2025.
• Anti-avoidance provisions carry civil penalties for schemes structured to dodge an order, including varying agreements so a worker stays past 3 months on paper churn.

If you run a warehouse, DC, food processing line or manufacturing site and use labour hire, you have seen the headlines: coal miners winning $30,000 pay rises, Qantas cabin crew moved into direct employment, unions promising more. The question that actually matters to you is simpler. Does Same Job, Same Pay apply to my site, and if it does, what happens to my labour hire rates?

Almost everything written about this law is by law firms for other lawyers, or aimed at mining companies. Nobody has answered it plainly for the operations manager of a 60-person warehouse in Truganina or a food processing site in Western Sydney. As a licensed labour hire employer, we deal with these rules from the other side of the arrangement, so here is the straight version.

The short answer for most of our clients: if your site pays award rates and has no enterprise agreement, the practical impact on you today is limited. But the moment you negotiate an enterprise agreement, the picture changes.

What Same Job, Same Pay actually is

The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 added Part 2-7A to the Fair Work Act from 15 December 2023, letting the Fair Work Commission make what is formally called a regulated labour hire arrangement order (RLHAO) (FWC guidelines). The first orders took effect from 1 November 2024.

When an order is in force, the labour hire employer must pay its workers on that host’s site no less than the protected rate of pay: the full rate of pay the worker would receive if the host’s own enterprise agreement (or other covered employment instrument) applied to them. Full rate is broad. It includes incentive-based payments and bonuses, loadings, monetary allowances, and overtime and penalty rates, not just the base hourly rate (FWC guidelines).

Applications can be made by a labour hire worker, an employee of the host, a union entitled to represent either, or the host business itself (FWC guidelines, section 306E(7)). In practice, nearly every application so far has come from unions. And nothing happens automatically: there is no order over your site unless someone applies for one and the Commission makes it.

Does it apply to your site? A four-question walkthrough

 

1. Do you have an enterprise agreement covering the work the labour hire workers do?

This is the gate most warehouse and food processing hosts stop at. The regime only bites where the host is covered by an employment instrument, such as an enterprise agreement or workplace determination, that would apply to the labour hire workers if you employed them directly. As Clayton Utz explains, award-only hosts fall outside the framework. If your direct staff are on the Storage Services Award or the Food, Beverage and Tobacco Manufacturing Award with no enterprise agreement, there is no host instrument to peg a protected rate to, so no order can be made against your arrangement. If you do have an enterprise agreement paying above award, keep reading: you are the kind of host this law was written about.

2. Do you have 15 or more employees?

The Commission cannot make an order where the host is a small business employer as defined in section 23 of the Fair Work Act (FWC guidelines). Note the exemption attaches to the host, not the agency: an order can still be made where the labour hire provider is a small business.

3. Will the placement run longer than 3 months?

Even where an order is in force, the protected rate does not apply to a worker whose placement runs for no longer than the default 3-month exemption period (FWC guidelines). Genuine surge cover, seasonal peaks and short backfills sit inside this window. Two cautions: the Commission can alter or remove the exemption period in exceptional circumstances, and if a short placement is extended past the period through varied or new agreements, the protected rate applies from the day of the variation.

4. Is it labour supply, or a genuine service?

The Commission must not make an order where the work is performed for the provision of a service rather than the supply of labour (FWC guidelines). A contractor bringing its own management, systems, equipment and a defined outcome (say, a specialist racking installation crew) is providing a service. A provider whose people work under your rosters, your supervisors and your SOPs is supplying labour. The BHP litigation below shows the Commission looks at how the arrangement really operates, not what the contract calls it. There is also a narrower exception for workers on formal training arrangements such as apprenticeships, and a final safety valve: no order if it would not be fair and reasonable in all the circumstances.

What has actually happened since November 2024?

 

The first two years have been dominated by three sectors: mining, aviation and meat processing. The landmarks so far:

• Batchfire Callide (2024). The first RLHAO, on a Mining and Energy Union application covering WorkPac workers at the Callide coal mine, effective 1 November 2024. It covered 324 workers.
• Qantas cabin crew (2025). Union applications covering cabin crew supplied to Qantas were resolved by consent, with orders issued in April 2025.
• BHP’s Queensland coal mines (2025). The first fully contested case. On 7 July 2025 a Full Bench made orders covering the Goonyella Riverside, Peak Downs and Saraji mines, rejecting BHP’s argument that its in-house Operations Services entities were service contractors: to escape an order, the work must amount to “an identifiable and discrete service” distinct from supplying labour, and pricing based on labour cost plus a margin pointed firmly to labour supply (Ashurst). More than 2,000 workers were covered, with pay rises reported around $30,000 a year (Clayton Utz). In December 2025 the Federal Court dismissed BHP’s challenge: the exemption turns on how the arrangement operates in practice, not how the contract describes it.
• Meat processing (2025). Union applications moved into the meat industry, with matters involving labour hire workers at major processing facilities before the Commission through 2025 (Lander & Rogers). This is the first push outside mining and aviation, and the closest to home for food processing hosts.

Notice what is missing from that list: general warehousing, transport and light manufacturing. That is not an accident. Orders follow enterprise agreements with rates well above award plus active union coverage, which is why coal mines and airlines went first. But the meat cases show the regime moving into blue-collar food production, where above-award enterprise agreements are common. If that is you, this is now a live issue, not a mining story.

What it means for your labour hire rates

If an order ever covers your site, the mechanics work like this:

• Your provider must pay the protected rate. That obligation sits with the labour hire employer, and it is a civil remedy provision: breach it and a court can order financial penalties (FWC guidelines). Commercially, that cost lands in the charge rate, so budget accordingly.
• You must help them get the rate right. A host covered by an order must give the provider the pay information it needs to work out the protected rate when asked in writing. That too is a civil remedy provision (FWC guidelines).
• You cannot structure your way around it. The anti-avoidance framework in sections 306S to 306V catches schemes entered into for the sole or dominant purpose of preventing an order or avoiding the protected rate, including restructuring corporate entities to dodge it (FWC guidelines), with civil penalties for breaches (Clayton Utz).

After the BHP decision, Clayton Utz’s advice to hosts was to audit the gap between labour hire and direct rates, review contracts for who carries the cost of a rate change, and expect more questions about pay parity. That is sensible for any host with an enterprise agreement, and cheap to do before anyone lodges an application.

Questions to ask your labour hire provider

These take ten minutes and tell you a lot about who you are dealing with. A good provider will have crisp answers; we would expect to be asked all of them.

1. What award and classification are your workers on at my site, and what is the pay rate? If a provider hesitates here, that is your answer about them.
2. If we had an enterprise agreement, would your people be paid in line with it? The Same Job, Same Pay question in one line. Listen for whether they understand the protected rate of pay at all.
3. Has any client of yours been the subject of an RLHAO application? And if so, what happened to rates and continuity.
4. How would a protected rate flow through to my charge rate? Ask for the build-up: pay rate, on-costs, margin. Providers who show the stack have nothing to hide.
5. Are you licensed where licensing applies? Victoria requires it (Wise Recruitments holds licence VICLHL10427), and a provider running compliant pay systems is the one that copes when pay obligations change.
6. If a placement is heading past 3 months, will you flag it? That is the mark that matters under an order, and also the natural point to review whether a permanent hire makes more sense.

FAQ

We pay award rates and have no enterprise agreement. Can an order be made against us?

No. The Commission can only make an order where a host employment instrument, such as an enterprise agreement, would cover the work (Clayton Utz). For award-only hosts the framework does not apply. Your provider still has to pay at least the award, every week, regardless.

If an order applied, who pays the increase: us or the agency?

Legally, the labour hire employer must pay the protected rate (FWC guidelines). Commercially, the increase flows into the charge rate you pay. What matters is whether your contract deals with rate changes triggered by law, so check it now rather than mid-dispute.

Can we just keep every placement under 3 months?

The exemption protects genuine short-term arrangements, not paper churn. If agreements are varied so a worker in fact stays longer, the protected rate applies from the variation, and deliberate schemes to avoid the regime breach the anti-avoidance provisions (FWC guidelines).

Does Same Job, Same Pay make labour hire less worthwhile?

No. It removes one specific use of labour hire: undercutting an enterprise agreement with cheaper long-term labour. The things hosts actually buy, speed to fill, surge flexibility, screened and inducted workers, and the option to try before hiring permanently, are untouched. If your model was never about paying placed workers less than your own EA rates for identical work, this law was not aimed at you.

*This article is general information only, current as at publication, and is not legal advice; get advice on your specific circumstances from a workplace lawyer.*

Talk to a provider that answers these questions before you ask

Wise Recruitments and Consulting is a licensed labour hire provider (VIC licence VICLHL10427) supplying warehouse, logistics, forklift, food processing and manufacturing workers across Sydney and Melbourne. Founded in 2025, our team of around 28 brings more than 15 years of combined recruitment experience, and pay transparency on every placement is standard. If you want a provider that can walk you through exactly what your workers are paid and why, talk to us.

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