Workplace Watch – 23 July 2025: Same job same pay, developments in ER/IR space
Welcome to the latest edition of the KHQ Workplace Watch, our summary of key developments in the ER/IR space.
In the latest edition we cover a recent decision of the Full Bench of the Fair Work Commission regarding same job same pay orders for employees of two BHP Operations Services entities, the Commission makes its first contested supported bargaining order, and key regulatory updates regarding penalty rates and a recent AHRC report regarding the positive duty.
CASE UPDATES
Full Bench makes SJSP orders for BHP OS entities
The Full Bench of the Fair Work Commission has made same job same pay orders for employees of two BHP Operations Services entities (BHP’s in-house labour providers) along with external labour hire organisations also supplying labour at three BHP coal mines. In doing so, the Full Bench rejected the arguments by the BHP OS entities that the work performed by their employees was for the provision of a service, rather than the supply of labour, with a focus on the “characterisation of the purpose, object or function of the performance of work by the regulated employees” (see at [64]).
Read the Full Bench decision here.
Work for multiple Uber entities counted together in unfair deactivation decision
A worker driving for both Uber Eats and Uber defeated a jurisdictional objection to his unfair deactivation application, made on the basis that the driver had separate contractual engagements with two different Uber companies to perform different work (food delivery for Uber Eats and rides driving for Uber). The Commission found that the relevant provision of the Act “does not differentiate between different types of work or different legal entities” (at [21] and that rather the focus was on the performance of work through a digital labour platform (and given the Commission was satisfied that the applicant performed work through the Uber App for the six months leading up to his deactivation, he was eligible to make his application).
Read the Commission decision here
Commission makes first contested supported bargaining order
Following application by the Health Services Union and Australian Education Union, the Fair Work Commission has made its first supporting bargaining order in circumstances where the order was opposed, requiring ten disability support service providers in Victoria to bargain collectively through the supported bargaining stream (noting that the application sought to include 14 employers). In doing so, the Full Bench was satisfied that the respondent employers had clearly identifiable common interests and that making the order would “open the prospect of improving rates of pay in a female dominated sector” see at [317].
Read the Commission’s decision here
REGULATORY UPDATES
Penalty rates
The Federal Government has indicated that it intends to introduce legislation into the Parliament this week to prohibit wrapping up of award penalty rates and overtime into annualised salary arrangements where those leave employees worse off – particularly relevant for the Fair Work Commission’s current consideration of an application to vary the General Retail Industry Award 2020.
See the Government’s media release here: https://ministers.dewr.gov.au/rishworth/protecting-penalty-rates-top-government-priority-parliament-resumes
Information regarding the application is available on the FWC website here.
AHRC makes recommendations relating to the positive duty
The Australian Human Rights Commission has released its Speaking from Experience report, following from a recommendation of the Respect@Work report which suggested the establishment of a process to hear experiences of individuals who had experienced workplace sexual harassment. The AHRC’s report makes further recommendations regarding the positive duty introduced in the Respect@Work reforms, including introduction of civil penalties for breaches of the positive duty and restrictions on the use of non-disclosure agreements. Watch this space as to whether the Government looks to implement these or other recommendations from the report.
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