About Same Job Same Pay

Need to know:

• Same Job Same Pay aims to close loopholes that allow Australian employers to pay labour hire workers less than permanent workers doing the same job
• Underpayment of labour hire workers compared to permanents is rife across the mining industry
• The Mining and Energy Union is actively campaigning for this change to our workplace laws
• The Closing Loopholes Bill currently before Parliament includes Same Job Same Pay provisions, along with other measures to stop exploitation of gig, casual and temporary workers.

What’s the problem?

Large companies have used labour hire loopholes to pay some of the workforce less than others for doing the same job. This has held workers’ wages and conditions back while corporate profits have grown.

Mining is not the only industry where employers use labour hire loopholes, but it is a stark example. In coal mining, decades of union collective bargaining have delivered industry standards typically 30 to 40% above the Black Coal Industry Award.

But mining giants like BHP, Glencore and Anglo American have engineered an employment model where thousands of permanent jobs have been replaced with labour hire in order to claw back workers gains and cut pay and conditions back to barely above the Award.

They use labour hire workers employed by companies like WorkPac, PIMS, Programmed and BHP’s Operations Services – not to fill temporary needs but to replace an ever-growing proportion of their permanent workforce.

We are optimistic that Same Job Same Pay laws will close the loophole that allows employers to disregard existing agreements at a worksite, by removing the financial incentive to outsource permanent jobs.

Same Job Same Pay would result in real wage increases for labour hire workers and restore bargaining power to all mineworkers.

What’s happening with these proposed new laws?

The Mining and Energy Union has been advocating for Same Job Same Pay laws for many years and ahead of the 2022 Federal Election we ran a visible and energetic campaign focused on permanent jobs for coal communities, with Same Job Same Pay for labour hire workers.

Our campaign resulted in the voices of mineworkers and the importance of permanent work for coal communities being amplified on the national stage, as well as the election of a coal miner to Parliament in the seat of Hunter.

Labor committed to supporting Same Job Same Pay ahead the 2022 Federal Election. On 4 September 2023, Workplace Relations Minister Tony Burke introduced the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023.

Same Job Same Pay for labour hire workers is one component of the Bill. It aims to ensure that labour hire workers, who do the same job as the company’s regular employees, are paid in line with rates in the relevant Enterprise Agreement at the host site.

If the Bill passes both houses of Parliament and becomes law, workers and their Unions could apply to the Fair Work Commission for a ‘Same Job Same Pay’ order at a site. A ‘protected rate of pay’ would be determined based on the host employer’s Enterprise Agreement.

There are exemptions for registered trainees and apprentices, short-term placements of less than three months, small businesses and genuine specialist contractors (subject to a multi-factorial test applied by the Fair Work Commission).

Orders issued by the FWC would not be implemented until November 2024, however applications could be made as soon as the Bill is passed through Parliament. With the Liberals and Nationals voting in the Senate to delay an Inquiry into the Bill from reporting until February 2024, the Bill won’t pass through Parliament until 2024.

Big mining companies are fighting Same Job Same Pay with a misleading ad campaign, because they don’t want their rort to end and their wages bill to rise.

Why is the mining industry ad campaign misleading?

The Minerals Council ad campaign is called ‘Find a better way’ claims that Same Job Same Pay means that untrained or lazy workers would have to be paid the same as more experienced or highly skilled employees.

This is completely false. The Albanese Government and Workplace Relations Minister Tony Burke have rejected the premise of the Minerals Councils ads and reaffirmed that the intention of the planned provisions is to ensure that employers don’t use loopholes to avoid paying the rates they have agreed to in site Enterprise Agreements.

Encouraging enterprise bargaining is an objective of our workplace relations system – but labour hire loopholes currently allow employers to get around genuine agreements by outsourcing full-time jobs to labour hire companies.

What does the legislation do for labour hire workers?

Under the proposed legislation, Unions could apply to the Fair Work Commission for a ‘Same Job Same Pay’ order at a site. A ‘protected rate of pay’ would be determined based on the host employer’s Enterprise Agreement.

There are exemptions for registered trainees and apprentices, short-term placements of less than three months, small businesses and genuine specialist contractors (subject to a multi-factorial test applied by the Fair Work Commission).

Alongside the SJSP provisions, the Closing Loopholes Bill:

· Aims to improve job security by clarifying the definition of a casual employee to end the ‘permanent casual’ rort.

· Introduces a new criminal offence for intentional wage theft and adds further mechanisms to ensure that victims of wage theft are properly repaid.

· Allows the FWC to set minimum standards for ‘employee-like’ workers, including in the gig economy.

· Requires the definition of ‘employer’ and ‘employee’ to be determined by considering the substance of the relationship between the parties, as opposed to an inflexible legal definition.

What next?

The Senate will conduct an Inquiry into the Closing Loopholes Bill, involving hearings and submissions. We will continue to make sure workers’ voices are heard as we campaign for these changes to become law.

Want to find out more?

Mining and Energy Union Submission to the Fair Work Legislation Amendment (Closing Loopholes) Bill.

Follow the Senate Inquiry into the Fair Work Legislation Amendment (Closing Loopholes) Bill.

‘Sets out key issues and questions’: ‘Read the Australian Government’s Same Job Same Pay consultation paper, outlining the issues and the approach to consulting with industry stakeholders

‘Employers seem to be jumping at shadows’: Read this explainer from the Guardian about whether the employers’ ad campaign stacks up

‘A kick in the guts’: Watch this WIN News report about our Queensland campaign launch, where a labour hire worker explains what it’s like to earn $40,000 a year less for the same job

‘$1 billion a year loss in economic activity’: Read this 2022 report by the McKell Institute about mining companies’ labour hire wage-cutting strategies and how they cost regional communities

‘If they raise a safety concern they’ll never get a permanent job’: Read this report in the Newcastle Herald about our member Rebecca McDonald travelling to Canberra to back Same Job Same Pay

‘The misuse of labour hire is allowing this to happen’: Read our MEU overview of the labour hire loopholes in mining

‘Business is trying to scare us about ‘same job, same pay’. But the proposal isn’t scary‘: Read this explainer from The Conversation that dispels myths about Same Job Same Pay