Same Job, Same Pay for Labour Hire: When a Fair Work Order Changes Farm Crew Rates — and When It Does Not
• Hari Yellina
Featured image: illustrative orchard rows. Not a specific Orchard Tech workplace or worker.
Legal position checked: 10 September 2026. National Fair Work system. Protected pay for labour hire employees — often called “same job, same pay” — applies when the Fair Work Commission makes a regulated labour hire arrangement order that covers the host, the employer and the work. It is not an automatic extra rate for every farm placement.
A host’s payroll officer says, “Pay them on our enterprise agreement. Same job, same pay is the law now.” The labour hire coordinator has been paying the Horticulture Award and has never seen an order that names that host.
That is a hypothetical. The useful question is: is there an order, and does it cover this host, this employer and this kind of work? If the answer is no, quoting a slogan will not create the protected rate.
The Fair Work Ombudsman’s page on protected pay rates for labour hire employees and the Commission’s page on regulated labour hire arrangement orders are the primary references.
What an order actually does
When an order is in force, the labour hire employer must pay a covered employee at least the protected rate of pay for work performed for that host. That rate is generally the full rate the employee would receive if the host’s enterprise agreement (or other host employment instrument named in the order) applied to them.
The labour hire employer’s own award or agreement can still apply. The employee must receive the higher of:
- what their own instrument requires, and
- the protected rate under the order.
The order must identify the host, the labour hire employer, the employees covered, the relevant workplace instrument and when it starts. If you cannot point to those details, you do not have an order to administer. You have a rumour.
Who can apply — and who cannot
The Commission can make an order only if someone applies. Applicants can include a labour hire employee, an employee of the host, a union that can represent those people, or the host. The labour hire employer of the regulated employees cannot apply.
The Commission must make an order where the statutory tests are met, including that the host is not a small business employer and that the host employment instrument would apply if the host employed the people directly to do that kind of work. It must not make an order if the work is wholly or principally the provision of a service rather than the supply of labour, or if it is not fair and reasonable in all the circumstances.
Whether a crew is “labour hire” or “a specialised service” is a facts question. Harvest picking under the host’s supervision is not automatically the same as a contractor who brings their own plant, systems and professional control. Do not assume the label on the invoice decides it.
Walk the hypothetical packing rate
Before anyone changes a quote:
- Search the Commission’s published orders and the subscription updates for the host’s legal name, not only the farm brand.
- If an order exists, read who is covered and which instrument is named.
- Ask the host in writing for the information needed to calculate the protected rate: classification, hours, penalties, allowances, piecework rules, casual loading.
- Compare that figure with the Horticulture Award (or the labour hire agreement) and pay the higher total.
- If the host later brings in a new labour hire employer for the same kind of work, the host has a duty to apply to vary the order to cover the new employer. A host cannot dodge an order by changing the supplier name on the gate.
Hosts covered by an order must also tell tenderers that an order applies. A quote process that hides the order is not a technicality.
When the protected rate does not apply, even with an order
The FWO and the Commission describe exceptions, including:
- employees on a training arrangement;
- a short-term exemption period, generally engagements of three months or less, unless the Commission sets a different period.
Piecework and casual loadings have specific calculation rules. Do not guess a 25% loading if the host instrument already sets a casual rate. Do not assume a three-month harvest automatically sits inside the exemption without reading the order and any exemption decision.
Anti-avoidance rules also matter. Replacing employees with contractors, or cycling labour hire businesses, to stop an order or avoid the protected rate can itself be unlawful. Get advice before restructuring a crew for that purpose.
What this is not
Protected pay is not:
- a substitute for a Victorian labour hire licence;
- a reason to ignore the Horticulture Award when no order applies;
- proof that every host enterprise agreement automatically covers labour hire staff;
- a WorkSafe or LHA instrument.
Victorian licensing and Fair Work pay are parallel tracks. A licensed provider can still underpay. An unlicensed arrangement can still be a pay problem. See Victorian licensing changes and the October supply-chain article for the licensing track.
A quote-time checklist
Suggested commercial check, not a prescribed form:
- Legal name of the host, ABN, and whether they have an enterprise agreement that would cover this work if they employed the people directly.
- Is the host a small business employer for Fair Work purposes?
- Is there a current regulated labour hire arrangement order, and does it name us or a related supplier?
- Are we supplying labour, or a specialised service with our own systems and control?
- Is the engagement likely to fall inside an exemption period, and has anyone applied to change that period?
- Who will recalculate pay if the host’s agreement is replaced mid-season?
Disputes about the protected rate go first to the workplace, then to the Commission. The FWO infoline is 13 13 94. Commission guidelines and forms (including F86) sit on the FWC site.
To discuss a Victorian or New South Wales horticulture requirement, use Orchard Tech’s employer enquiry page and say whether the host has an enterprise agreement or a known labour hire order.
General information checked 10 September 2026. Orders are specific. This article cannot calculate a rate for a named host. Obtain advice before changing pay or quoting against a host agreement.
