All these things that I’ve done: Same Job Same Pay

[Hey Fair Work Commission…]

 Yeah, you know you gotta help me out

Yeah, oh don't you put me on the back burner

You know you gotta help me out, yeah

You're gonna bring yourself down, yeah

You're gonna bring yourself down, yeah You're gonna bring yourself down

Over and in, last call for sin

While everyone's lost, the battle is won

With all these things that I've done

All these things that I've done

All These Things that I’ve Done by The Killers

What is the Same Job, Same Pay framework?

The "Same job, Same pay" framework introduced by the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) amends the Fair Work Act 2009 (Cth) to empower the Fair Work Commission to order that labour hire workers engaged by a host company receive the same pay as the host company's employees if certain requirements are met.

The Fair Work Commission can make a “regulated labour hire arrangement order” where:

·         a labour hire entity supplies its employees (labour hire workers) to perform work for another company (host company); and

·         an employment instrument (including an enterprise agreement or workplace determination) applies to the host company and would apply to the labour hire workers if they were employed directly by the host company.

When an order is in force, the labour hire company must pay labour hire workers at no less than the full rate of pay that the labour hire worker would receive if they were employed directly by the host company and paid under the enterprise agreement or workplace determination.

If an order is made, labour hire workers will enjoy the same "full rate of pay" as employees of the host company, which includes incentive-based payments and loadings, monetary allowances, and overtime or penalty rates. However, non-remuneration conditions such as rostering will not apply to labour hire workers.

Are there any exceptions?

This framework does not apply if:

·         the host company employs less than 15 employees;

·         the labour hire workers are providing a service rather than their labour; or

·         it is not fair and reasonable in all circumstances to do so.

Labour hire workers who are covered by a training arrangement or working for a host company for a short period (generally 3 months or less) are also not entitled to employee-like pay.

Who can bring an application for a RLHAO?

I got soul, but I'm not a soldier

I got soul, but I'm not a soldier

I got soul, but I'm not a soldier

I got soul, but I'm not a soldier

The following people/entities/soldiers can make an application for a RLHAO:

·         A regulated or labour hire employee;

·         A host employee;

·         A union entitled to represent either a labour hire or host employee or

·         A host employer.

Anti-avoidance provisions

I wanna stand up, I wanna let go

You know, you know, no you don't, you don't

Labour hire entities and host companies cannot avoid the "same job same pay" provisions by entering into an arrangement to specifically avoid the operation of these provisions. Labour hire entities are also prohibited from engaging other types of workers for the purpose of avoiding paying the employee rate of pay, such as engaging people as independent contractors or moving people around so they work less than 3 months to avoid these provisions.

How should employers respond?

Labour hire agencies may wish to consider the following:

·         if supplying labour hire workers to multiple host companies, expect to become subject to multiple RLHAOs;

·         understand that, if covered by a RLHAO, they must pay workers the same rate of pay as an agreement or instrument-covered employee of the host company – this will require information sharing to ensure correct rates are paid;

·         consider pricing and tender documents to ensure that costs are covered if a RLHAO is made;

·         consider making submissions to the FWC if a proposed RLHAO is not fair and reasonable in all circumstances; and

·         not attempt to avoid their obligations under the "same job same pay" framework.

Organisations who engage workers through labour hire agencies should:

·         expect to see labour hire arrangements becoming more expensive, with labour hire agencies contractually recouping increased wages bills from host companies – meaning it may not be commercially viable to utilise labour hire moving forward;

·         consider the impact of these reforms before negotiating new enterprise agreements which may become covered by a RLHAO;

·         respond as soon as reasonably practicable to any labour hire agency request for information about the rate of pay for labour hire workers covered by a RLHAO;

·         consider making submissions to the FWC if a proposed RLHAO is not fair and reasonable in all circumstances; and

·         not attempt to avoid their obligations under the "same job same pay" framework.

When there's nowhere else to run

Is there room for one more son? [or Regulated Labour Hire Arrangement Order]

One more son [or Regulated Labour Hire Arrangement Order]

If you can hold on

If you can hold on, hold on

Remotely Legal can assist employers and boards on all aspects of employment law, including advising on difficult people issues, reviewing policies and assisting with enterprise bargaining.  Remotely Legal can train your boards and management teams on how to deal with incidents and investigations.  Remotely Legal can also be your fully outsourced HR and people legal team.

RL Investigations, part of Remotely Legal, are a team of highly experienced and qualified lawyers and investigators, who can function as your independent, external investigation team providing fast, comprehensive and reliable investigation reports, workplace culture reviews and suggestions for organisational improvement. RL Investigations can also help your internal HR or investigation team to improve their investigations and assist decision makers in considering the right factors when making key decisions.

This blog is general advice only.  Please obtain legal advice in relation to your specific circumstances.  This blog was written by a human so please seek permission if you wish to copy any of it.