Same Job, Same Pay orders have been legally operative since November 2024, and the first year of enforcement delivered pay increases to more than 7,600 workers across mining, aviation, warehousing, and freight. For host employers that hold an enterprise agreement and engage labour hire workers, the scheme is no longer a future compliance consideration — it is an active one. This article covers how the scheme works, what the enforcement picture looks like, and what host employers should be checking now.

How the Same Job, Same Pay scheme works

The Same Job, Same Pay reforms, introduced under the Fair Work Legislation Amendment (Closing Loopholes) Act 2023, give the Fair Work Commission (FWC) the power to make Regulated Labour Hire Arrangement Orders (RLHAOs). These orders require labour hire employers to pay their employees no less than the rate of pay that would apply if those employees were directly employed by the host business under the host's enterprise agreement.

An application for an order can be made by a labour hire employee, a union representing them, or the host employer itself. Once an order is in force, the labour hire employer must pay the applicable protected rate of pay to covered employees while they are performing work for that host.

What the protected rate of pay includes

The protected rate of pay is based on the host employer's enterprise agreement and covers the full rate of pay as defined under the Fair Work Act — including base wages, allowances, and applicable loadings. It is not limited to base hourly rates alone.

When an order cannot be made

The FWC cannot make a regulated labour hire arrangement order in the following circumstances:

• The host employer is a small business employer with fewer than 15 employees

• The work is performed for the provision of a service rather than the supply of labour. In determining which applies, the FWC considers factors including who manages and supervises the workers, whether the labour hire employer's systems and equipment are used to perform the work, and the extent to which the work is of a specialist or expert nature

• The employee is engaged under a training arrangement, such as an apprenticeship or traineeship

• The engagement is short-term — generally three months or less — though the FWC has discretion to vary this in exceptional circumstances

• It would not be fair and reasonable in all the circumstances to make the order, having regard to factors such as existing pay arrangements, the history of the industrial relationship, and the terms of the labour hire arrangement

What enforcement looks like in 2026

Regulated labour hire arrangement orders became legally operative from 1 November 2024. In the twelve months that followed, the scheme delivered pay increases to more than 7,600 workers across mining, aviation, warehousing, freight, and other industries. The scale and speed of enforcement has been more significant than many host employers anticipated.

Orders to date — illustrative examples

The following examples are drawn from government and FWC announcements and reflect the types of outcomes that have resulted from orders made under the scheme:

These outcomes have been concentrated in industries where host employers hold enterprise agreements with significant pay differentials compared to the rates being paid to labour hire workers performing equivalent roles.

The role of unions — and what it means for risk

The majority of applications for regulated labour hire arrangement orders to date have been initiated by unions, most notably the Mining and Energy Union. Under the scheme, a union can apply for an order on behalf of labour hire workers without the agreement or prior notice of the host employer or the labour hire provider.

For host employers operating in industries with active union presence and existing enterprise agreements, the risk of an application being made is materially higher. Sectors that have seen the most activity to date include mining, aviation, logistics, and food processing. Host employers in these industries — or those whose enterprise agreements carry significantly higher rates than the labour hire workers they engage — should treat the risk as active rather than theoretical.

What host employers should check — and when to seek advice

Host employers that hold an enterprise agreement and engage labour hire workers should assess their exposure under the scheme. The following checklist provides a starting point for that assessment.

1. Does your enterprise agreement cover the work being performed by labour hire workers?

A regulated labour hire arrangement order can only be made where the host employer holds an enterprise agreement that would apply to the labour hire workers if they were directly employed by the host. Where labour hire workers are performing work that falls within a classification in the host's enterprise agreement, the arrangement is likely within scope.

2. Is there a pay differential between labour hire workers and directly employed staff?

Where labour hire workers are performing the same or substantially similar work as directly employed staff under a lower rate of pay, the conditions for an order are more likely to be met. Documenting the current pay rates of both groups — including allowances and loadings — provides a basis for assessing exposure and responding to any application.

3. Is the arrangement for the supply of labour or the provision of a service?

This distinction determines whether the scheme applies at all. Where the labour hire employer manages, supervises, and directs the workers, and the workers use the host's systems and equipment, the arrangement is more likely to be characterised as a supply of labour. Where the labour hire employer retains control and delivers a defined service outcome using its own methods and resources, a service provision exemption may apply.

The FWC has made clear that this assessment is based on the substance of the arrangement, not the label used in the contract. Arrangements described as service contracts but operating as labour supply will not automatically attract the exemption.

4. How do your commercial contracts address cost-pass-through and statutory compliance?

If a regulated labour hire arrangement order is made, the protected rate of pay must be paid by the labour hire employer. Who ultimately bears the additional cost depends on the commercial terms between the host and the provider. Contracts should clearly address liability for rate adjustments and legislative changes. Host employers should also be aware of anti-avoidance provisions (sections 306S, 306SA, 306T, 306U and 306V), which prohibit arrangements designed to avoid the making or application of an RLHAO.

Next steps

Where any of the above checks indicate potential exposure, the recommended course of action is to document the current arrangements, engage with the labour hire provider to understand how any order would be administered, and seek advice from a workplace relations lawyer or contact the Fair Work Commission directly.

The Same Job, Same Pay scheme has moved quickly from legislation to enforcement, and the pattern of applications to date — union-initiated, concentrated in industries with enterprise agreements and significant pay differentials — gives host employers a clear signal of where exposure is highest.

For host employers that hold an enterprise agreement and use labour hire, the starting point is understanding whether the arrangements are within scope, what the pay differential looks like, and what the commercial contract with the labour hire provider says about cost changes. Where that assessment identifies potential exposure, advice from a workplace relations lawyer is the most reliable next step.

Official sources:

• Fair Work Commission — Regulated Labour Hire Arrangement Orders

• Fair Work Ombudsman — Labour hire changes

• Australian Government — Thousands of Australian workers get more pay under Same Job Same Pay laws

Last updated: August 2026