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Same job same pay for labour hire: how protected rates work
Same job same pay is the common name for regulated labour hire arrangement orders under the Fair Work Act. When an order applies, a host's labour hire workers have to be paid at least what they would get under that host's enterprise agreement or other workplace instrument, which the Fair Work Ombudsman calls the protected pay rate. It isn't a blanket rule: the Fair Work Commission only makes an order when someone applies, so it works host by host.
What follows is how the orders work as at September 2026, drawn from the Ombudsman's and the Commission's own pages. It explains what the rules mean for rostering and records. Whether an order covers your crew at a particular site is a question for the Commission, the Fair Work Ombudsman or your adviser.
When does same job same pay start in Australia?
The Commission's guidelines for regulated labour hire arrangement orders say Part 2-7A was added to the Fair Work Act by the Closing Loopholes Act 2023 and commenced on 15 December 2023. That date is when the Commission gained the power to make orders. Nothing changed for a labour hire worker on that day unless an order was later made for the host they work for.
Each order has its own start. The Ombudsman says an order must outline the host, the labour hire employer, the employees covered, the relevant workplace instrument and when the order starts. The guidelines add that the day an order comes into force must be the day it's made or later, so an order can't apply retrospectively.
The Commission publishes a list of orders made since 15 December 2023, with an operative date for each. On 15 September 2026 the first entry on that list had an operative date of 13 August 2026, so orders are still being made. If you supply crew to a large host, that list is the first place to look.
The independent review of the Closing Loopholes Acts has also finished. The Department of Employment and Workplace Relations says the final report was tabled in Parliament on 20 August 2026. This article doesn't cover what the report recommends, and a recommendation isn't law until Parliament changes the Act.
What is same job same pay legislation?
The rules sit in Part 2-7A of the Fair Work Act, which the Ombudsman references as sections 306A to 306W. The Commission's page on regulated labour hire arrangement orders uses a handful of terms that are worth knowing before you read an order.
| Term | What it refers to |
|---|---|
| Regulated host | The host employer the order covers |
| Regulated employees | The labour hire employees the order covers |
| Host employment instrument | The host's agreement or instrument that would apply if the host employed them directly |
| Protected rate of pay | The rate those employees must be paid at least |
Who can apply for an order
The Commission says an application can come from a regulated employee, an employee of the host, a union that can represent either of them, or the host itself. Labour hire employers can't apply. The application is Form F86, and the applicant must serve a copy on the host, each labour hire employer that would be covered and each union they know of. In practice, that means a labour hire firm usually finds out about an application when it's served with one.
When the Commission makes an order
The Commission must make an order where an employer supplies, or will supply, employees to a host to do work for it, the host isn't a small business employer, and the host's instrument would apply to those employees if the host employed them directly to do that work. It must not make an order if the work is wholly or mainly the provision of a service rather than the supply of labour, or if it isn't fair and reasonable in all the circumstances.
On the service question, the Commission looks at matters including how involved the labour hire employer is in managing the work, how much it directs and supervises the employees, how much they use the employer's own systems, plant or structures, whether industry or professional standards apply, and how specialised the work is. A crew you supervise with your own gear is a different picture from people who slot into the host's team, and it's the Commission that decides which side of the line an arrangement falls.
What the protected rate is based on
The Ombudsman describes the protected pay rate as the total amount the employees would get under the host's workplace instrument if they worked directly for the host. It says to work it out by identifying the minimum wage under the host's instrument, then applying any additional amounts the employee would be entitled to based on their hours and conditions, including penalty rates, loadings, allowances, overtime, incentive-based payments, bonuses and other additional amounts.
Your own award or agreement doesn't disappear. The Ombudsman says a labour hire employee covered by an order must be paid the higher of the amount under the labour hire employer's award or agreement and the protected pay rate, and that labour hire employers must check both and pay the higher amount.
Casuals get a casual rate if the host's instrument includes one. If it doesn't, or no instrument covers the work, the Ombudsman says the protected rate is the full rate that would apply if they weren't casual, the host's instrument applied to them, and its base pay rate was increased by 25%.
Some payments are left out for certain employers. The Ombudsman lists sole traders, partnerships, other unincorporated entities and non-trading corporations in New South Wales, South Australia, Queensland, Tasmania and Victoria, along with the Victorian public sector and Tasmanian local government. For those employers the protected rate doesn't include payments such as superannuation, workers compensation, long service leave and public holidays, among others on the Ombudsman's list.
Two more things can shift the rate. On application, the Commission can make an alternative protected rate of pay order that bases the rate on a different instrument where using the host's rates would be unreasonable, for example because they're too low or too high. And if the host's instrument is replaced, such as by a new enterprise agreement, the Ombudsman says the order is taken to refer to the new one when it applies, and the host must tell the labour hire employer and give it the information to update pay.
Exclusions: small hosts, short engagements and training
The Commission can't make an order if the host is a small business employer. The Ombudsman defines that as fewer than 15 employees at a particular time, counting employees of associated entities, and not counting casuals unless they're engaged on a regular and systematic basis. The Commission's guidelines note an order can still be made where the labour hire employer supplying the crew is itself a small business.
Even where an order applies, the protected rate doesn't have to be paid to an employee on a training arrangement, or during an exemption period. The Commission says the default exemption period covers short-term arrangements of 3 months or less. In exceptional circumstances it can set a longer or shorter period, a recurring extended period or no exemption period at all, on an application using Form F86C.
Don't treat the 3 months as a rostering tool. The Ombudsman says hosts and labour hire employers can't avoid paying the protected rate by engaging other employees or contractors or entering other labour hire agreements, and the guidelines give engaging successive employees for less than the exemption period as an example of the behaviour the rules target.
Same job same pay in Queensland and Western Australia
Orders come from the Fair Work Act, so they're not a state scheme, and the Ombudsman's Fair Work system page explains who that national system covers. In Queensland it says state public sector and local government employees remain under the state system. In Western Australia it says state public sector employers are in the state system, as are sole traders, partnerships, other unincorporated entities and non-trading corporations, and a WA business that changes from a sole trader to a company may move to the national system.
So for a Western Australian firm, the business structure of both the labour hire employer and the host matters before an order is even on the table. Check which system applies with the Fair Work Ombudsman, the WA state body or your adviser. Labour hire licensing is a separate set of state rules again, covered in labour hire licensing in Australia.
Working out and recording each host site's rate
Once an order covers a host you supply, the office's job is making sure every worker at that site is paid correctly from the day it comes into force. The Ombudsman says a host covered by an order must comply with a written request from the labour hire employer for information to help it pay employees, as soon as possible and in time to pay them correctly. The guidelines add that a labour hire employer doesn't contravene the obligation if it reasonably relies on incorrect information the host gave in response to a written request. Put your questions in writing.
- Find the order on the Commission's list and confirm the host, the employer, the employees covered, the instrument and the start date.
- Ask the host in writing for the instrument, the classification the work falls under, and the penalty rates, loadings, allowances, overtime, bonuses and incentive payments that apply to the hours your crew work.
- Compare that with your own award or agreement for the same work and record which is higher.
- Record the date each worker started at that host, since the exemption period depends on how long they work there.
- Ask the host to tell you when its agreement is being replaced, and redo the comparison when it is.
If you and the host or a worker disagree about the rate, the Ombudsman says to try to resolve it at the workplace first. After that, the Commission can deal with it on Form F86E, usually through mediation or conciliation first. Its page notes that if the parties agreed to arbitration, an arbitrated order can apply to work done from when the original order came into force, which might mean back pay. A classification disagreement is one of the examples it gives.
One worker, two hosts, two rates
The Commission describes the protected rate as payable in connection with the work the employee performs for the regulated host. A worker who does a fortnight at a host with an order and then fills a gap at a site without one isn't on a single rate. The rate follows the site, and the roster is where the office first sees which site each shift was at.
That's where a roster that carries rates earns its keep. In Mustr, rates are optional and switched on per organisation. Per-day bill and pay rates can be set at organisation, client, role, day or night, and weekday or weekend level, with the most specific winning, and per-employee rates override the site or role rate for the one person who is paid differently. Admins see bill, pay and margin on the shift, while workers and clients never see dollar figures. Mustr doesn't work out a protected rate or run payroll. It holds the rate your office has worked out, and a per-day figure is a planning number, so the hours-based amounts still need applying in payroll.
Questions people ask
When does same job same pay start in Australia?
The Fair Work Commission's guidelines say Part 2-7A of the Fair Work Act commenced on 15 December 2023. It doesn't apply automatically, because an order has to be applied for and made for a particular host. Each order states when it starts, and it can't come into force before the day it's made.
Can a labour hire company apply for a same job same pay order?
No. The Fair Work Commission says labour hire employers can't apply. An application can come from a labour hire employee working for the host, an employee of the host, a union that can represent either, or the host itself.
Does same job same pay apply to casuals?
The Fair Work Ombudsman says casual labour hire employees covered by an order get a casual rate if the host's instrument includes one. If it doesn't, the protected rate is worked out as if they weren't casual, with the host's base pay rate increased by 25%. The protected rate also doesn't have to be paid during the exemption period, which by default covers engagements of 3 months or less.
Does same job same pay apply to small business?
The Fair Work Commission can't make an order if the host is a small business employer, which the Fair Work Ombudsman defines as one with fewer than 15 employees at a particular time. The Commission's guidelines say an order can still be made where the labour hire employer supplying the workers is a small business. How employees are counted affects the answer, so check your situation with the Ombudsman or your adviser.
What happens to an order when the host's enterprise agreement is replaced?
The Fair Work Ombudsman says the order then points to the new instrument once it covers the host, provided it would cover the employees and they are doing the same kind of work. The host must tell the labour hire employer about the new instrument and give it the information needed to update pay.
See how Mustr runs crews across several client sites on the labour hire page, or book a demo to see bill and pay rates on a shift.