The Fair Work Commission (FWC) has made its first same-job, same-pay decision since its introduction into the Fair Work Act 2009 (Cth) (FW Act) by the closing the loopholes legislation. The Same Job, Same Pay amendments commenced operation on 15 December 2023. Please see our earlier article providing an overview of the Same Job, Same Pay labour reforms.
The FWC Decision
The recent decision involved an application made by the Mining and Energy Union (MEU) on behalf of over 300 workers placed by WorkPac at Batchfire’s thermal coal mine. Notably, both WorkPac, a prominent labour hire provider, and Batchfire did not oppose the application, leading the FWC to consider the matter ‘on the papers’. This decision marks the FWC’s first application of the Same Job, Same Pay provisions under section 306E of the FW Act.
Criteria Considered by the FWC
The FWC meticulously examined each criterion outlined in section 306E to determine the applicability of the Same Job, Same Pay principle:
- Representation by MEU: The FWC confirmed MEU’s authority to represent the workers in question.
- Supply of Employees: It was established that WorkPac supplied employees to perform production work for Batchfire at the mine.
- Non-Small Business Status: Batchfire was identified as not qualifying as a small business employer under the FW Act.
- Nature of Employment: The provision of workers by WorkPac was confirmed to be for the supply of labour rather than the provision of services.
- Comparison of Roles: Key similarities were identified between Batchfire and WorkPac employees at the mine, including attendance at pre-start meetings, performance of identical production tasks, operation of Batchfire-owned machinery, uniform requirements, and completion of Batchfire’s induction processes.
FWC’s Decision and Draft Order
Based on the comprehensive assessment of these criteria, the FWC rendered a decision in favor of issuing an order under the Same Job, Same Pay provisions. As this is the first application under this new legislative framework, a draft order has been issued, allowing interested parties a two-week window to provide comments.
Implications for Labour Hire Providers
For labour hire providers like WorkPac and their clients, particularly those operating under enterprise agreements, the Same Job, Same Pay decision underscores critical considerations:
- Risk Assessment: Providers are advised to assess their current operations and client agreements to gauge exposure to Same Job, Same Pay applications.
- Mitigation Strategies: Proactive measures should be adopted to mitigate risks and ensure compliance with potential future orders. This entails reviewing employment terms, remuneration structures, and operational protocols to align with the FWC’s decision.
How We Can Help
If you engage a labour hire provider or provide labour hire services and have clients or host employers operating under enterprise agreements, our office offers valuable assistance:
Obligation-Free Consultation: Reach out to our office for an obligation-free consultation. We can help assess the risk of Same Job, Same Pay applications and advise on steps to mitigate potential impacts on your business. Our expertise ensures that you meet any regulatory requirements that may be imposed.
Conclusion
The Same Job, Same Pay decision by the FWC represents a pivotal development in Australian employment law, reinforcing principles of fairness and equity in remuneration across similar roles. For labour hire providers and host employers alike, understanding the implications of this decision and taking proactive steps to mitigate risks are essential to ensure compliance and maintain operational continuity.
To learn more about how your business may be impacted by the Same Job, Same Pay provisions or to schedule an obligation-free consultation, we encourage you to reach out to our office. Our team of experts stands ready to assist in navigating these regulatory changes and safeguarding your business interests in the evolving landscape of Australian employment law.
Written By
Michelle Chadburn
Senior Associate
NB Employment Law