Where a host employer is subject to an enterprise agreement or any other kind of instrument which provide for terms and conditions of employment (ie a workplace determination or a public service determination), a labour hire employer must follow the same protected rate of pay for their employees and they have a right to request information from a host employer to work out the exact protected rate of pay for their employees.

A host employer also has the obligation to notify a labour hire employer when a new enterprise agreement has been approved, so the labour hire employer can also follow the new protected rate of pay.

The new ‘same job same pay’ legislation  is however subject to exceptions, meaning that the Fair Work Commission cannot make an order if:

• It is not fair and reasonable in the circumstances
• The arrangement is for a service to be provided rather than the supply of labour to a host employer
• The host employer is a small business employer
• The order affects employees engaged in training arrangements under state and territory laws
• The order affects short-term employment arranges (typically 3 months or less)