Just two weeks from its landmark decision involving BHP’s Queensland coal mines (see related article) the Fair Work Commission (FWC) has doubled down on its approach to determining whether work is for the provision of service or the supply of labour, for the purpose of determining “same job same pay” applications.

On 22 July, Deputy President Butler granted an application by the Australasian Meat Industry Employees Union (AMIEU) for a Regulated Labour Hire Arrangement (RLHA) order to cover contractor employees working at a poultry processing facility.

In her decision, DP Butler reiterated key precedents from the earlier BHP decision including how the FWC will apply various test factors from the “service contractor exclusion” provisions within the laws.

Background

The AMIEU applied for a RLHA order to cover workers employed by Springtime Poultry Pty Ltd (Springtime) and Australia Personnel Global Pty Ltd (APG), performing poultry deboning and related work at the Mareeba plant operated by Bartter Enterprises Pty Ltd (part of the Baiada group, associated with the Steggles brand).

Bartter (and by adoption, Springtime) opposed the making of the RLHA order in respect of Springtime under section 306E(1A) of the Fair Work Act 2009, arguing the work was for the provision of a service, not the supply of labour.

In summary, Barter and Springtime contended that:

• Springtime was engaged to perform a discrete processing service, not just to supply workers.
• The Processing Services Supply Agreement (entered in 2015) defined a commercial contract for processing work, including performance-based outcomes (e.g., per kilogram or number of birds processed).
• Springtime managed its own workforce, provided supervision, training, and was responsible for quality assurance in line with Bartter’s product specifications.
• Therefore, the performance of work was for a result, not merely to fill labour gaps.

After reviewing the evidence DP Butler rejected Bartter’s arguments, concluding Bartter retained control over key aspects of the work, such as directing cuts and quality assurance.

Further, DP Butler found the Springtime supervisor was effectively integrated into Bartter’s operations; the work was identical to that of Bartter’s own employees (not a distinct specialist service); and payment by reference to production output did not determine the true nature of the relationship nor reflect how the work was directed and performed.

Regarding the specific “test factors” (at s.306E(7a)), the Commission found:

• Springtime’s involvement in the work was limited – Bartter directed the workflow, quality standards, and product specifications.
• Supervision was mixed: while Springtime had supervisors onsite, Bartter’s team leader frequently directed all workers, including Springtime employees.
• Equipment was partly supplied by Springtime (e.g., knives), but core infrastructure (e.g., conveyor belts, workstations) belonged to Bartter.
• The work (poultry deboning) was not sufficiently “specialist” to qualify as a distinct service—it was integral to Bartter’s core business.
• Both Bartter and Springtime shared regulatory responsibilities under food safety and WHS laws.

For these reasons DP Butler found the work was not for the provision of a service, but rather for the supply of labour, satisfying the FWC’s requirement under s.306E(1A).

Note, the employer parties did not oppose the order being made in relation to APG but did seek to influence the form of that order.

Implications for Employers

While the practical circumstances may have limited application to AREEA’s resources and energy sector members, this matter is noteworthy given how firmly DP Butler was guided by the FWC’s Full Bench decision in BHP of 7 July 2025.

BHP is considered an important precedent setting decision in relation to how the FWC views its responsibilities, including its discretionary judgements, in applying the “service contractor test” within s.306E of the FW Act.

Most notably, DP Butler found that (emphasis added):

• Section 306E(7A) provides a non-exhaustive list of factors to consider when determining the nature of the work, meaning other evidence and findings could be relied upon by the FWC;
• The test must consider whether the employees are performing an identifiable and discrete service, distinct from working as part of the regulated host’s business; and
• the supply of supervisory employees “might not support a conclusion that the performance of work … is for the provision of a service rather than the supply of labour if the supervisory employees are performing work in the business of the employer rather than as part of the provision of a distinct service”.

In AREEA’s view, all three of the above features of the FWC’s decisions in BHP and now Bartter could be appealable points, should employer parties to these decisions choose to pursue a Federal Court review of the relevant decisions.

For guidance and information on “same job same pay” matters, including how the FWC is considering case law around service arrangements, contact [email protected].