BHP's 'Same Job, Same Pay' Challenge Fails: What This Means for Australian Workers

BHP Loses Appeal Against 'Same Job, Same Pay' Orders

A Full Court has dismissed BHP's appeal against the Fair Work Commission's (FWC) 'same job, same pay' orders, dealing a significant blow to the mining giant's efforts to avoid paying labour-hire workers the same rates as direct employees.

The Court's Decision

The court rejected BHP's argument that its Operations Services division was providing a service rather than supplying labour, which would have exempted it from the Albanese government's laws. BHP claimed the FWC applied an incorrect test by requiring that a service be entirely separate from labour supply—a standard it argued was "near impossible" to meet in most service provisions.

Justices Darryl Rangiah, Michael Wheelahan, and Yaseen Shariff ruled that the FWC did not apply such a strict approach. Instead, they stated the test was whether the service "may be concomitant with the supply of labour or it may be in addition or separate to, or it may be something more than." The court found that supervisors and managers in BHP's structure were not significant enough to qualify for an exemption, as any labour-hire supplier would have its own organisational hierarchy.

Implications for the Resources Sector

A Mining and Energy Union (MEU) spokesman welcomed the decision, stating it "confirms that BHP cannot delay or avoid the FWC's same job, same pay orders." However, BHP expressed concern that the ruling could capture other service contractor businesses, "creating uncertainty and adding complexity for the entire resources sector about how operations are managed."

Separate Appeal on Mount Arthur Mine

In a related development, the Federal Court overturned orders applying to BHP's labour-hire firm, Skilled Workforce, at its Mount Arthur mine. The court limited the orders to haul truck drivers rather than the broader workforce, citing a lack of evidence for other workers. This means Skilled Workforce can temporarily stop paying the higher rates as the matter is directed back to the FWC for a re-hearing.

The MEU warned this could create a loophole, allowing "a labour-hire employer to start supplying employees to the regulated host who fell outside the order."

What's Next?

Despite the loss, BHP could still take the case to the High Court, indicating the legal battle over pay equity in Australia's resources sector is far from over. This decision underscores the ongoing tension between corporate efforts to manage costs and worker demands for fair compensation under the 'same job, same pay' principle.