Same Job Same Pay and labour-hire: GPS audit trail under Loopholes Act

A regulated labour-hire arrangement order application has just been filed against your Perth host-employer business. The labour-hire workers on your mining contract are paid the labour-hire provider’s enterprise agreement rate, somewhat below what your direct workforce earns for the same role. If the order is made, you will have to pay those labour-hire workers the protected rate from here on, with back-pay implications nobody costed in when the contract was negotiated. A commercial arrangement that looked settled has become a regulatory matter.

This is the part of the Closing Loopholes reforms that catches host employers off guard. The labour-hire worker is, on paper, somebody else’s employee. The rate is, on paper, somebody else’s enterprise agreement. And yet the order, when it comes, lands on the host.

Same Job Same Pay, and what actually changed

The Closing Loopholes legislation of 2023 inserted a new part into the Fair Work Act, and it allows the Fair Work Commission, on application by an employee, an employee organisation or the host employer itself, to make a regulated labour-hire arrangement order. The effect of the order is straightforward: the labour-hire worker must be paid at least the rate that would apply if they were directly employed by the host under the relevant enterprise agreement.

The regime is aimed squarely at one practice, using labour-hire to undercut a host’s enterprise agreement. The trigger has three parts: the worker is performing work for the host, the work is the same or substantially the same as work covered by the host’s instrument, and the order is reasonable in the circumstances. There are exemptions, for small businesses, for genuine training arrangements, for certain service contracts, but most large-employer labour-hire arrangements sit inside the scope. Breach of an order is penalised per worker, per pay period, under the Act’s standard contravention regime, and deliberate underpayment of the protected rate now reaches into the criminal wage-theft provisions. Host, provider and worker all have standing to apply, so the application can come from any direction.

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What the application turns on

A Same Job Same Pay application comes down to three evidentiary questions. Is the labour-hire worker doing the same, or substantially the same, work as the host’s directly employed workers? What is each of them actually paid? And is the labour-hire arrangement functioning to undercut the host’s instrument? GPS shift data, integrated across the host’s roster and the labour-hire provider’s, can answer all three without anyone having to reconstruct a year from memory.

The same-work question is settled by the geofence and the role assignments at the worksite: a labour-hire worker clocking into the same crew, on the same shift pattern, under the same supervisor, makes the same-work analysis short. The rate question is a payroll-export comparison. The undercut question is simply whether the labour-hire rate sits below the protected rate, by how much, and across what share of the workforce. None of that is mysterious once the data exists in one place. All of it is guesswork when it does not.

The host employer’s defensive posture

A host employer can, in rare cases, apply for an order against itself to gain certainty. Far more often the host simply wants to avoid an order at all, and the defensible posture there is plain: make sure the labour-hire provider’s pay matches or exceeds the host’s protected rate from the first day of the engagement, write that into the labour-hire contract, and verify it against the payroll exports the platform produces, rather than trusting that it is so.

Where the rates genuinely cannot match, because of capacity, geography or a real training arrangement, the host needs to be ready to evidence the reasonable grounds for the difference, not merely assert them. The shift data supports both roads: a same-rate engagement looks identical at the platform level, and a differentiated engagement carries the platform-level evidence of exactly why it differs. Either way, the host is not improvising when the question is asked.

Why providers and hosts end up sharing a platform

Labour-hire providers operating within the scope of this regime have a strong commercial reason to integrate their workforce platform with the host’s. When both parties see the same shift data, the same award classification, the same pay rate, the regulatory exposure is contained for both sides at once, and the seven-year retention obligation is met for both provider and host from the same source.

The Australian businesses adapting well to Same Job Same Pay share an operating pattern: integrated workforce platforms across host and labour-hire, a quarterly reconciliation of rates against the host’s enterprise agreement, a documented reasonable-grounds analysis wherever rates differ, and a contractual clause letting the host audit the provider’s rates on request. GeoTapp’s multi-organisation model is built for exactly that split, so host and provider can work from one source of truth and keep the regulator from becoming a third party to the relationship. Start a free fourteen-day trial, with no card, and put the rate comparison somewhere you can actually see it.

Do you know, today, how your labour-hire workers’ rates compare with your direct workforce for the same job? Tell us in the comments below. Most host employers have never lined the two up side by side, and what you write helps others run the comparison before an application runs it for them.