Learnings from recent ‘same job, same pay’ cases decided by the Fair Work Commission

In this article, we discuss two recent cases where the Fair Work Commission (FWC) has made or considered making ‘regulated labour hire arrangement orders’ (RLHA Orders), and the key takeaways for employers.

Overview of ‘same job, same pay’ orders

The ‘same job, same pay’ provisions were introduced in late 2023 under the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) (Amending Act) which amended the Fair Work Act 2009 (Cth) (Fair Work Act). The principle of ‘same job, same pay’ requires labour hire workers to be paid no less than the ‘protected rate of pay’ – that is, the rate payable to employees (under the relevant workplace instrument, such as an enterprise agreement) directly employed by the host employer undertaking the same work. On application of employees, unions or a ‘regulated host’, the new mechanism enables the FWC to make a RLHA Order, which requires the labour hire employer to pay their employees at least the ‘protected rate of pay’.

The FWC must make a RLHA Order if it is satisfied that:

• an employer supplies or will supply, either directly or indirectly, regulated employees to perform work for a regulated host;
• a workplace instrument that applies to the regulated host would apply to the regulated employees if the regulated host were to employ employees to perform work of that kind; and
• the regulated host is not a ‘small business employer.’

However, the FWC must not make an RLHA Order if:

• the performance of the work is not or will not be for the provision of a service, rather than the supply of labour. To determine whether work is for the provision of a service, the FWC may take into account factors including:
  • the employer’s involvement in the performance of the work;
  • whether the regulated employees use the employer’s systems, plant or structures to perform the work; and
  • how specialist or expert the work is; or
• it is not fair and reasonable in all the circumstances to make the order.

While the provisions in respect of RLHA Orders came into effect in December 2023, the FWC has only been able to make RLHA Orders from 1 November 2024. Recent ‘same job, same pay’ cases before the FWC are therefore useful in understanding the circumstances in which the FWC may or may not make a RLHA Order.

Recent cases

Application by the Flight Attendants’ Association of Australia

On 5 June 2024 and 12 July 2024, the Flight Attendants’ Association of Australia (FAAA) applied for RLHA Orders which sought to align pay conditions for short-haul and long-haul cabin crew employed by a number of labour hire employers providing regulated employees to Qantas Airways Limited (QAL) as the regulated host. In mid-March 2025,  a settlement between Qantas Domestic Pty Ltd (QD) (QAL’s in-house labour hire provider), Maurice Alexander Management Pty Ltd (MAM) and Altara Resources QF Pty Ltd (Altara) (as relevant labour hire employers), and the FAAA and QAL (as regulated host) was reached in respect of RLHA Orders with draft orders proposed to the FWC which will apply to labour hire workers who perform cabin crew work. The settlement is expected to benefit 760 cabin crew employed by either QD, MAM and Altara.

If approved by the FWC, the RLHA Orders will bring the pay conditions of labour hire employees in line with cabin crew directly employed by QAL. QD, MAM and Altara have also agreed to backpay increases to November 2024. The agreement to backpay increases is specific to the agreement reached between the parties. That is, RLHA Orders do not ordinarily operate retrospectively. However, it is worth noting that if:

• there is a dispute about the protected rate of pay;
• the parties agree to arbitration; and
• the FWC makes an arbitrated protected rate of pay order (different to an RHLA Order)
  such an order can operate retrospectively.

Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53

On 13 March 2025, the Full Bench of the FWC (FBFWC) made RLHA Orders sought by the Mining and Energy Union (MEU) which come into effect on 13 April 2025. The RLHA Orders apply to labour hire workers employed by CoreStaff NSW Pty Ltd (CoreStaff) and Skilled Workforce Solutions (NSW) Pty Ltd (SWS), who supply labour for Bengalla Mining Company Pty Ltd (Bengalla) at the Bengalla mine.

In this matter, the primary consideration before the FWC was whether it was not fair and reasonable in the circumstances to make a RLHA Order. On this point, Bengalla and CoreStaff submitted it was difficult to calculate the ‘protected rate of pay’ for part-time and casual labour hire employees given these types of employment and the employee’s shift patterns were not contemplated under the Bengalla Enterprise Agreement 2022 (Agreement) (which covered full time employees employed directly by Bengalla). Therefore, it would be difficult to calculate the ‘protected rate of pay’ for such labour hire employees, would require the FWC to determine a rate that was neither fair or reasonable and may result in a degree of overcompensation of such employees.

While the FBFWC acknowledged this submission had ‘some force’ in respect of a small number of CoreStaff employees, the FBFWC also considered the significance of that submission was reduced by a number of other factors including that CoreStaff employees’ rate of pay was considerably below the rates in the Agreement. The FBFWC ultimately concluded that any degree of ‘overcompensation’ must be viewed in context and was not satisfied that it was not fair and reasonable to make a RLHA Order in these circumstances.

SWS separately submitted that an RLHA Order would result in performing the labour supply contract with Bengalla at a loss as well as on the novel ground that it was not fair and reasonable to make a RLHA Order because doing so would involve ‘an acquisition of property otherwise than on just terms’, contrary to s 51(xxxi) of the Australian Constitution.

In considering these submissions, the FBFWC held that while a RLHA Order may increase costs of performing the obligations under the supply contract, and reduce SWS profit, it did not alter or deprive its rights under the contract.  Specifically, SWS would continue to have the right to receive the contractually agreed price for labour supply under the contract.

Implications for employers

Given the FWC has only recently been able to make RLHA Orders, each decision or negotiated outcome provides further insight on the operation of the ‘same job, same pay’ provisions. These cases illustrate obtaining a RLHA Order is relatively accessible if the applicable criteria under the Fair Work Act are satisfied. In particular, the Bengalla decision suggests it may be a high threshold to satisfy the FWC that it is not fair and reasonable in all the circumstances to make such an order.

In summary

• RLHA Orders made by the FWC will only have prospective effect unless the FWC makes an arbitrated protected rate of pay order, which may operate retrospectively, or where there is agreement reached between parties in relation to backpay for a specific period.
• A RLHA Order is more likely to be sought by unions/employees and made by the FWC where the base rate of pay of labour hire employees is considerably lower than the rate of pay for the host’s direct employees undertaking the same work under a workplace instrument.
• The ‘protected rate of pay’ can still apply to casual employees (or other types of employment) where a workplace instrument does not expressly contemplate casual employment or other employment modes.
• The cost impact or profit reduction of an order on the labour hire provider is unlikely to be a compelling reason why the FWC should not make the order.

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Authored by:
Amanda Junkeer, Partner
Nakita Rose, Associate
Jenna Blatch-Williams, Graduate