BHP is taking its fight over the Albanese Government’s “same job same pay” (SJSP) laws to the High Court of Australia, having applied for special leave to appeal its December loss in the Full Federal Court. 

As has been covered extensively in the AREEA News Update (see this article), a Full Bench of the Fair Work Commission found in July 2025 that employees of BHP’s subsidiary business, Operations Services (OS), were being engaged in labour-hire-like arrangements at its Queensland coal mines and there were no barriers to making the SJSP orders sought by the unions (MEU and AMWU).  

Following that, in its judicial review of the FWC’s decision, the Full Federal Court on 19 December upheld the FWC’s decision, finding no jurisdictional error and backing the Commission’s discretion in characterising the BHP-OS relationship as that of labour supply rather than provision of distinct services (see AREEA’s case summary here). 

As a result, unless overturned by the High Court, BHP will be required to pay OS employees performing production and maintenance work at Saraji, Peak Downs and Goonyella Riverside in accordance with BHP’s enterprise agreements. 

Notably, BHP has not obtained a stay of the orders, meaning they have taken effect while the litigation has continued. 

The move to seek the High Court’s authoritative review underscores the significance of the case – not only for BHP but for the broader interpretation of the SJSP regime. 

Should the High Court grant leave to appeal, key questions would be answered concerning the FWC’s application of the “service contractor exemption” negotiated into the legislation via AREEA’s strong advocacy during the passage of the Closing Loopholes legislation. 

Procedural context 

As a threshold matter, BHP must obtain special leave to appeal. The High Court grants special leave sparingly, typically where a case raises a question of principle, statutory construction or systemic importance beyond the interests of the immediate parties. 

While BHP’s formal grounds have not yet been published, the application can be expected to focus on whether the Full Federal Court correctly characterised the nature of the FWC’s task and the limits of its discretion when applying the service contractor exemption contained in section 306E(1A) of the Fair Work Act. 

In its December decision, the Full Federal Court emphasised that the exemption operates as a jurisdictional threshold but that its application turns on fact-specific, evaluative judgments about how arrangements operate in practice.  

The Court rejected BHP’s arguments that the Commission had imposed an impermissibly narrow test for service contracting and held that it was reasonably open to characterise the BHP-OS model as labour supply rather than the provision of an identifiable and discrete service. 

Critically, the Court’s role was confined to judicial review.  

It did not determine whether it would itself have reached the same conclusion on the facts, only whether the Commission applied the correct legal framework and reached a conclusion reasonably open on the evidence.

Implications for AREEA members 

BHP’s decision to seek High Court review highlights the continuing legal and commercial uncertainty surrounding the practical operation of the SJSP framework, particularly in large, integrated resource operations that rely on mixed workforce models. 

While the inclusion of the service contractor exemption remains a critical safeguard for the sector, recent decisions confirm that its application is highly fact dependent.  

Contractual labels, outcome-based descriptions and corporate separation will not be determinative where, in practice, contractors are embedded in core operations, priced primarily by reference to labour inputs, and subject to extensive host direction and control. 

At the same time, the judgments to date do not support the proposition that traditional mining services, project-based contracting, or outcome-driven service models are automatically at risk.  

Many arrangements across the resources and energy sector differ materially from the BHP-OS model and may have little or no exposure as a result of this litigation. 

If special leave is granted, a High Court decision would provide the first authoritative guidance on the outer limits of the SJSP regime and the proper construction of the service contractor exemption.  

That guidance would be of lasting importance across contract-reliant industries well beyond the resources sector. 

AREEA will continue to provide members with updates on this matter and practical guidance as the legal landscape evolves.  

Contact [email protected] for more information or to discuss the circumstances unique to your business.