Labor accused of breaking a workplace promise

Mining bosses have accused the Albanese government of breaking its promise to exclude service contractors from being captured by the ‘same job, same pay’ laws.

Mining bosses have accused the Albanese government of breaking its promise to exclude service contractors from being captured by the “same job, same pay” laws, ahead of a major test case to be heard by the industrial umpire involving 1600 workers at coalmines in Queensland’s Bowen Basin.

Mining bosses have accused the Albanese government of breaking its promise to exclude service contractors from being captured by the “same job, same pay” laws, ahead of a major test case to be heard by the industrial umpire involving 1600 workers at coalmines in Queensland’s Bowen Basin that could unleash “uncertainty and disruption across the entire mining industry”.

The Minerals Council of Australia has told its members that Workplace Relations Minister Murray Watt “does not now believe” the Albanese government’s laws exempt service contractors from being paid the same as directly employed workers, arguing his position was a “substantial departure from the assurances given by the previous minister (Tony Burke) at the time of the parliamentary debate”.

Workplace Relations Minister Murray Watt. Picture: Steve Pohlner

Senator Watt has rejected claims Labor’s position has changed since he became minister, saying he was the subject of “more scaremongering from parts of the mining industry and the Coalition”.

“The Fair Work Commission must not make a same job, same pay order unless it is satisfied that the performance of the work is not or will not be for the provision of a service,” Senator Watt said.

“Labor’s same job, same pay laws have seen labour hire mineworkers receive pay rises of up to $40,000, closing the rort that saw them paid less than direct employees.”

The MCA briefing note accused Senator Watt of arguing some service contractors could be covered by the laws in his submission to the Fair Work Commission for a case to be heard on Monday between unions and BHP for workers on the Peak Downs, Saraji and Goonyella Riverside coalmines.

This is despite Mr Burke arguing in 2023 there would be a “straight exclusion” for service contractors, in amendments to the initial legislation to ease industry concerns.

“That just gives a really clear line drawn that if it’s labour hire it’s covered; if it’s service contractors, it’s not,” Mr Burke said.

Nearly 40 per cent of workers in the mining industry are service contractors, with the industry arguing they are distinct from labour hire firms because they offer workers who apply expertise, ­capital and equipment that is needed on a site.

In a submission to the FWC on the case involving BHP mines in Queensland, lawyers for Senator Watt wrote that contractors could be covered by the laws if they were mainly involved in the same work as a labour hire employee.

“The minister submits that it is not the intention of (the law) that the provision of a service means any performance of work that is more than the mere supply of labour,” the submission said.

The submission argued the service contractor exemption “ought to be interpreted narrowly to preserve the statutory intent behind the beneficial or remedial scheme”, while it was a “matter of degree” as to whether a worker was primarily providing labour or a service.

“It is well settled that beneficial provision sought to be construed liberally and beneficially,” the submission said.

The MCA briefing note warned if the FWC backed Senator Watt’s submission then “the mining industry’s worst fears about the legislation will be confirmed”.

“In the inevitable grey areas of the ‘matter of degree’, the reach of ‘same job, same pay’ will be unpredictable, uncertain and subject to hotly contested litigation in the FWC, with no clear boundaries or definitions,” the note reads.

“In 2025, the government is now arguing that the amendments do not ‘exempt service contractors’ from ‘same job, same pay’, as it claimed in 2023. Nor do they ‘put it beyond doubt’, as Minister Burke had claimed. Service contractors can still be captured by ‘same job, same pay’ and they will still be required to litigate their way out to avoid capture.

“Moreover, the government is arguing that the legislation should be applied ‘liberally’ to spread the ‘benefits’ of ‘same job, same pay’ as broadly as possible, including across service contractors.”

The case before the FWC beginning on Monday is seeing BHP and the MCA oppose the same job, same pay applications from the Mining and Energy Union and the Australian Manufacturing Workers Union for employees of BHP Operations Services, WorkPac and Chandler McLeod.

MEU general secretary Grahame Kelly said the union was very confident the WorkPac, Chandler Macleod and Operations Services employees are eligible for same job, same pay.

“They work under the exact conditions that the Albanese Government sought to address with laws to close the labour hire loophole,” Mr Kelly said.